Judgment — ECLI:EU:T:2014:885
Date: 2014-10-16
Language of the case: English
Court formation: Sixth Chamber, Extended Composition
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - unfounded;Action for annulment - successful
Origin: Denmark

summary of the facts concerning each of the organisations included in the list of the draft order, which implied the possibility of an individual examination by the House of Commons. Secondly, the debates of the House of Commons were in fact able to cover individual organisations, in particular so far as concerns the ‘Revolutionary Organisation 17 November’. Finally, the fact that the measures submitted for the approval of the House of Commons were submitted to it in the form of a single order and not in the form of as many orders as organisations concerned did not imply that an actual individual examination was impossible, since the House of Commons remained free, in any event, to refuse to approve the draft order. 123 It follows from the foregoing considerations that the capacity of the Home Secretary as a competent authority is not called into question by the LTTE’s arguments. 124 The same applies to the UK Treasury, to which the Council only refers in the grounds of Implementing Regulation No 83/2011 but not in the grounds of subsequent regulations. In the present actions, the LTTE, however, makes no particular challenge to the capacity of the UK Treasury as a competent authority beyond the general arguments mentioned in paragraphs 104 to 118 above, which have already been rejected by the Court. 125 As regards, lastly, the Indian government, the LTTE, by contrast, puts forward detailed arguments. It considers, primarily, that, having regard to the principle of sincere cooperation, which, it claims, exists only between the European Union and the Member States, an authority of a third State cannot be recognised as a competent authority within the meaning of Common Position 2001/931. 126 That argument of principle, according to which an authority of a third State cannot be recognised as a competent authority within the meaning of Common Position 2001/931, must be rejected for the following reasons. 127 In the first place, it is apparent from recitals 5 and 7 to Common Position 2001/931 that that common position was adopted within the context and for the purposes of the implementation of Security Council Resolution 1373 (2001), a resolution in which the Security Council decided that ‘all States [were to] take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information’ (paragraph 2(b) of Security Council Resolution 1373 (2001)) and ‘afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession necessary for the proceedings’ (paragraph 2(f) of Security Council Resolution 1373 (2001)). In its resolution, the Security Council also called upon ‘all States … to exchange information in accordance with international and domestic law and cooperate on administrative and judicial matters to prevent the commission of terrorist acts’ (paragraph 3(b) of Security Council Resolution 1373 (2001)). 128 It should be observed that, as the Court of Justice has held, although, because of the adoption of a common position, the European Union is obliged to take, under the Treaty, the measures necessitated by that common position, that obligation means, when the object is to implement a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations, that in drawing up those measures the European Union is to take due account of the terms and objectives of the resolution concerned and of the relevant obligations under the Charter of the United Nations relating to such implementation (judgment of 3 September 2008 in Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, ECR, EU:C:2008:461, paragraph 296; see also judgment of 13 March 2012 in Melli Bank v Council, C‑380/09 P, ECR, EU:C:2012:137, paragraph 55). 129 Having regard both to the objectives of Security Council Resolution 1373 (2001), aimed at the intensification of the fight against terrorism at global level by the systematic and close cooperation of all States, and to the fact that Common Position 2001/931 was adopted in order to implement that resolution, the LTTE’s argument, put forward even though that common position does not contain any a priori limitation as regards the nationality of competent authorities, disregards both the wording and the objective of that Common Position and is thus incompatible with the implementation, at EU level, of the Security Council resolution. 130 In addition, it should be noted that recital 6 to Regulation No 2580/2001 states that ‘[that] Regulation is a measure needed at Community level and complementary to administrative and judicial procedures regarding terrorist organisations in the European Union and third countries’. 131 In the second place, it must be held that the LTTE’s argument is based on an incorrect perception of the function of the principle of sincere cooperation within the framework of the scheme created by Common Position 2001/931 and the adoption by the Council of restrictive measures. 132 Under Article 4(3) TEU, relations between the Member States and the EU institutions are governed by reciprocal duties to cooperate in good faith (judgment in Sison, T‑341/07, paragraph 114 above, EU:T:2009:372, paragraph 94). 133 As established by the case-law, the principle of sincere cooperation entails for the Council, in the context of the application of Article 1(4) of Common Position 2001/931 and Article 2(3) of Regulation No 2580/2001, the obligation to defer as far as possible to the assessment by the competent national authority of the Member State concerned, at least where it is a judicial authority, in particular in respect of the existence of ‘serious and credible evidence or clues’ on which the decision is based (judgment in Sison, T‑341/07, paragraph 114 above, EU:T:2009:372, paragraph 95). 134 Contrary to what the LTTE suggests, that principle therefore does not concern the question of the classification of a national authority as a competent authority within the meaning of Common Position 2001/931, but only the scope of the Council’s obligations with regard to the decisions of such an authority, where the latter is an authority of a Member State. 135 The fact that the principle of sincere cooperation applies only in relations between the European Union and Member States therefore does not mean that an authority of a third country cannot be classified as a competent authority within the meaning of Common Position 2001/931 and that the Council cannot, if necessary, rely on the assessments of that authority. 136 It follows from the foregoing considerations that the LTTE’s main argument that the inapplicability of the principle of sincere cooperation in the relations between the Union and third States precludes, as a matter of principle, an authority of a third State being classified as a competent authority must be dismissed. The aim pursued by Common Position 2001/931 leads to the opposite conclusion. 137 None the less, the fact remains that, as the Court inferred from the provisions of Common Position 2001/931, since the mechanism established by that common position has the effect of allowing the Council to include a person on a list relating to frozen funds on the basis of a decision taken by a national authority, verification that there is a decision of a national authority fulfilling the definition of Article 1(4) of Common Position 2001/931 is an essential precondition for the adoption, by the Council, of its own decision to freeze funds (see, to that effect, judgment in Sison, T‑341/07, paragraph 114 above, EU:T:2009:372, paragraph 93). 138 That condition, laid down by the Court in the context of decisions adopted by authorities of EU Member States, is all the more important in the case of decisions adopted by authorities of a third State. Unlike Member States, many third States are not bound by the requirements stemming from the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and none of them is subject to the provisions of the Charter of Fundamental Rights of the European Union. 139 Therefore the Council must, before acting on the basis of a decision of an authority of a third State, carefully verify that the relevant legislation of that State ensures protection of the rights of defence and a right to effective judicial protection equivalent to that guaranteed at EU level. In addition, there cannot be evidence showing that the third State in practice fails to apply that legislation. In that case, the existence of legislation formally satisfying the conditions set out above would not allow the conclusion that the decision was one of a competent authority within the meaning of Common Position 2001/931. 140 It should be added that, in the absence of equivalence between the level of protection ensured by the legislation of a third State and that ensured at EU level, a finding that a national authority of a third State had the status of a competent authority within the meaning of Common Position 2001/931 would entail a difference in treatment between the persons covered by EU fund-freezing measures, according to whether the national decisions underlying those measures emanated from authorities of third States or authorities of Member States. 141 However, the Court finds, as the LTTE has submitted, that the grounds for the contested regulations do not contain any evidence to suggest that the Council carried out such a thorough verification of the extent to which the rights of defence and the right to effective judicial protection were safeguarded under the Indian legislation. Those grounds are limited to the following considerations in Implementing Regulations Nos 83/2011 through to 125/2014: ‘Having regard to the commission and participation in acts of terrorism by the [LTTE], the Government of India proscribed LTTE in 1992 under the Unlawful Activities Act 1967 and subsequently included it in the list of terrorist organisations in the Schedule to the Unlawful Activities Prevention (Amendment) Act 2004. Decisions in respect of the [LTTE] have thus been taken by competent authorities within the meaning of Article 1(4) of Common Position 2001/931.’ 142 By contrast, in the case of the UK authorities which are authorities of an EU Member State, the Council was at pains to state, after the reference to the applicable legislation, that the decisions of those authorities were subject to periodic review by a Governmental Commission (fifth paragraph of the grounds for the various contested regulations) or to judicial review (sixth paragraph of the grounds of 25 August and 15 November 2010). However, for the Indian authorities (a third State), the Council does not provide any assessment of the levels of protection of the rights of defence and to judicial protection provided by the Indian legislation. 143 In that regard, the Council unconvincingly suggested at the hearing that the failure to assess the protection levels in the case of the Indian authorities resulted from the fact that the contested regulations concerned reviews and not the initial listing, which would have given rise to a more detailed statement of reasons reflecting a more detailed initial assessment of the Indian legislation. 144 First, that suggestion is contradicted by the repeated specific statement of reasons as regards the UK authorities in all of the various successive contested regulations. Secondly, the Council does not produce, in support of its suggestion, the allegedly more detailed grounds for the initial listing regulation and does not claim, still less prove, that it communicated them to the LTTE. If the Council’s suggestion were proved, it would follow at the very least, owing to the transmission to the LTTE of the resulting incomplete statement of reasons, that there was an infringement of the rights of defence. Thirdly, it should be noted that fund-freezing measures, notwithstanding their preventive nature, are measures which may have a very substantial negative impact on the persons and groups concerned (see, to that effect, judgment of 18 July 2013 in Commission v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, ECR, EU:C:2013:518, paragraph 132 and the case-law cited). Therefore, both the adoption and the extension of those measures must be based on a sufficiently sound and express statement of reasons. 145 As regards Implementing Regulation No 790/2014, the grounds for maintenance are supplemented by the indications that Sections 36 and 37 of the Unlawful Activities Act 1967 include provisions for the review and revision of the list and that the decision proscribing the LTTE as an unlawful association is periodically reviewed by the Home Affairs Minister of India. The Council adds that the last revision took place on 14 May 2012 and that, following the revision made by the tribunal established under the Unlawful Activities Act 1967, the designation of the LTTE was confirmed by the Home Affairs Minister of India on 11 December 2012. The Council states that those decisions were published by notification in the Official Journal of India. 146 As regards a third State, in the light of the considerations set out in paragraphs 138 to 140 above, the Council must, inter alia, carefully verify that the relevant legislation of the third State ensures protection of the rights of defence and a right to effective judicial protection equivalent to that guaranteed at EU level. In that context, the mere reference to sections of legislative provisions and to a periodical revision by the Home Affairs Minister is insufficient to support a conclusion as to the existence of a thorough examination of the guarantees provided by the third State at issue as to the protection of the rights of defence and the right to effective judicial protection. 147 It follows from the foregoing considerations that, in the light of the grounds for the contested regulations, the Council cannot be considered to have carried out, prior to maintaining the LTTE on the list relating to frozen funds, a thorough verification that the third State in question had legislation ensuring compliance with the rights of defence and the right to effective judicial protection to an extent equivalent to that guaranteed at EU level. 148 That is particularly so because the grounds for the contested regulations make no mention of Indian provisions, in particular the Prevention of Terrorism Act (POTA). The defence indicates, but a posteriori before the Court, that they were relevant since they determined the procedure applicable to the proscription of groups regarded as infringing the Indian laws on illegal activities. That lacuna in the statement of reasons for the contested regulations confirms the lack of a thorough examination, which is particularly important in the case of decisions of authorities of third States. 149 That lack of thorough examination at the stage of the adoption of the contested regulations, and the resulting infringement of the obligation to state reasons, cannot be remedied by the Council’s references and explanations made for the first time before the Court. 150 Finally, it should be noted, in connection with the considerations expressed in the second sentence of paragraph 139 above, that neither the Council nor any intervener in its support responds to the arguments in the application, which are reproduced in the reply, that the repeal of the POTA in 2004 arose from the fact that it had led to arbitrary detentions, acts of torture, disappearances and extrajudicial executions, and that the legislative amendments made after that repeal did not solve the problems. 151 Consequently, whereas the Council was entitled to classify the UK authorities mentioned in the grounds for the contested regulations as competent authorities, that could not, at the very least as the grounds for the contested regulations are formulated, be the case for the Indian authorities. 152 It is therefore appropriate to uphold the present plea in so far as it concerns the Indian authorities and to reject it in so far as it concerns the UK authorities. 153 The Court will continue its examination of the actions by considering the LTTE’s criticisms of the approach followed by the Council and the reasons given by the Council for maintaining the LTTE’s name on the list relating to frozen funds and, in particular, by considering the criticism that the imputation to the LTTE of the violent acts mentioned in the grounds for the contested regulations has no sufficient factual or legal basis. 154 For this purpose, it is appropriate to examine the fourth to sixth pleas, taken together with the second plea. The fourth to sixth pleas, taken together with the second plea Arguments of the parties 155 The LTTE claims that, far from having carried out a serious examination of the developments in procedures at national level, as required by Article 1(6) of Common Position 2001/931, the Council based the contested regulations not so much on decisions of competent authorities but on a list of acts directly attributed by the Council to the LTTE. That list does not constitute a decision of a competent authority. The imputation in it has no sufficient factual or legal basis (second and fourth pleas). In addition, there are too many gaps in the grounds for the contested regulations to enable the LTTE to mount an effective defence and to allow judicial review (fifth and sixth pleas). 156 The Council, supported by the interveners, disputes the LTTE’s arguments and contends that it undertook a detailed review before deciding, by the contested regulations, to maintain the LTTE’s name on the list relating to frozen funds. The outcome of that review is a political question to be decided only by the legislator. The Council enjoys a wide discretion. With regard to its consideration of developments in procedures at national level, the Council refers to two applications for removal from the list made by LTTE to the Home Secretary in 2007 and 2009, which were rejected. The Council denies not having duly taken into consideration developments in the situation in Sri-Lanka since the military defeat of the LTTE in 2009. It considers that it fully complied with its obligation to state reasons and disputes that the LTTE’s rights of defence were infringed. It was for the LTTE to challenge the facts attributed to it, if necessary, at national level. Moreover, those facts constitute contextual material of public knowledge, of which the LTTE had been aware for a long time, but which it challenges only before the Court. Findings of the Court 157 First, it should be noted that following the adoption, on the basis of decisions of competent national authorities, of a decision placing a person or group on the list relating to frozen funds, the Council must, at regular intervals, and at least once every six months, be satisfied that there are grounds for continuing to include the party concerned in the list at issue. 158 While verification that there is a decision of a national authority as defined in Article 1(4) of Common Position 2001/931 is an essential precondition for the adoption by the Council of an initial decision to freeze funds, verification of the consequences of that decision at national level is essential for the adoption of a subsequent decision to freeze funds (judgments of 12 December 2006 in Organisation des Modjahedines du peuple d’Iran v Council, T‑228/02, ECR, EU:T:2006:384, paragraph 117, ‘the judgment in OMPI T‑228/02’, and of 11 July 2007 in Sison v Council, T‑47/03, EU:T:2007:207, paragraph 164). The essential question when reviewing whether to continue to include a person on the list at issue is whether, since the inclusion of that person in that list or since the last review, the factual situation has changed in such a way that it is no longer possible to draw the same conclusion concerning the involvement of that person in terrorist activities (judgment in Al-Aqsa C‑539/10, paragraph 105 above, EU:C:2012:711, paragraph 82). 159 Secondly, the Court has consistently held that the statement of reasons required by Article 296 TFEU, which must be appropriate to the measure at issue and the context in which it was adopted, must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power to review its lawfulness. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see judgment in OMPI T‑228/02, paragraph 158 above, EU:T:2006:384, paragraph 141 and the case-law cited). 160 In the context of the adoption of a decision to freeze funds under Regulation No 2580/2001, the statement of reasons for that decision must be assessed primarily in the light of the legal conditions for the application of that regulation to a particular case, as laid down in Article 2(3) thereof and, by reference, to either Article 1(4) or Article 1(6) of Common Position 2001/931, depending on whether it is an initial decision or a subsequent decision to freeze funds (judgment in OMPI T‑228/02, paragraph 158 above, EU:T:2006:384, paragraph 142). 161 The Court cannot accept that the statement of reasons may consist merely of a general, stereotypical formulation modelled on the wording of Article 2(3) of Regulation No 2580/2001 and Article 1(4) or (6) of Common Position 2001/931. In accordance with the principles referred to above, the Council is required to state the matters of fact and law that constitute the legal basis of its decision and the considerations which led it to adopt that decision. The grounds for such a measure must therefore indicate the actual and specific reasons why the Council considers that the relevant rules are applicable to the party concerned (see judgment in OMPI T‑228/02, paragraph 158 above, EU:T:2006:384, paragraph 143 and the case-law cited). 162 Therefore, both the statement of reasons for an initial decision to freeze funds and the statement of reasons for subsequent decisions must refer not only to the legal conditions for the application of Regulation No 2580/2001, in particular the existence of a national decision taken by a competent authority, but also to the actual and specific reasons why the Council considers, in the exercise of its discretion, that the party concerned must be made the subject of a fund-freezing measure (judgment in Sison T‑341/07, paragraph 114 above, EU:T:2009:372, paragraph 60). 163 Thirdly, with regard to the review carried out by the Court, the latter has recognised that the Council has broad discretion as to what matters to take into consideration for the purpose of adopting economic and financial sanctions on the basis of Articles 75 TFEU, 215 TFEU and 352 TFEU, consistent with a common position adopted on the basis of the common foreign and security policy. This discretion concerns, in particular, the assessment of the considerations of appropriateness on which such decisions are based (see judgment in Sison T‑341/07, paragraph 114 above, EU:T:2009:372, paragraph 97 and the case-law cited). However, although the Court acknowledges that the Council has a broad discretion in that sphere, that does not mean that the Court will refrain from reviewing the Council’s interpretation of the relevant facts. The European Union judicature must not only establish whether the evidence put forward is factually accurate, reliable and consistent but must also determine whether that evidence contains all the relevant data that must be taken into consideration in appraising the situation and whether it is capable of substantiating the conclusions drawn from it. However, when conducting such a review, it must not substitute its own assessment of what is appropriate for that of the Council (see judgment in Sison T‑341/07, paragraph 114 above, EU:T:2009:372, paragraph 98 and the case-law cited). 164 Fourthly, as regards the factual or legal grounds of a fund-freezing decision concerning terrorism, it should be noted that, according to Article 1(4) of Common Position 2001/931, the list relating to frozen funds is to be drawn up on the basis of precise information or material in the relevant file which indicates that a decision was taken by a competent authority in respect of that person, group or entity, irrespective of whether it concerns the instigation of investigations or prosecutions for a terrorist act, an attempt to perpetrate, participate in or facilitate such an act based on serious and credible evidence or indicia, or condemnation for such deeds. 165 In its judgment in Al-Aqsa C‑539/10 P, paragraph 105 above, (EU:C:2012:711), the Court of Justice noted that it is apparent from the references, in Article 1(4) of Common Position 2001/931, to a decision of a ‘competent authority’, ‘precise information’ and ‘serious and credible evidence or [indicia]’ that that provision aims to protect the persons concerned by ensuring that they are included on the list at issue only on a sufficiently solid factual basis, and that the common position seeks to attain that objective by requiring a decision taken by a national authority (paragraph 68 of the judgment). The Court of Justice observed that the European Union does not have the means to carry out its own investigations regarding the involvement of a person in terrorist acts (paragraph 69 of the judgment). 166 The grounds put forward by the Council to found the contested regulations should be examined in the light of the foregoing considerations. 167 Those grounds begin with a paragraph in which the Council (i) describes the LTTE as a ‘terrorist group’ formed in 1976 which fights for a separate Tamil State in the north and east of Sri-Lanka, (ii) states that the LTTE has carried out ‘a number of terrorist acts including repeated attacks on and intimidation of civilians, frequent attacks against government targets, disruption of political processes and kidnappings and political assassinations’ and (iii) submits that ‘while the recent military defeat of the LTTE has significantly weakened its structure, the likely intention of the organisation is to continue terrorist attacks in Sri-Lanka’ (first paragraphs of the grounds for the contested regulations). 168 Next the Council draws up a list of the ‘terrorist attacks’ which it claims that the LTTE carried out from August 2005 until April 2009 or — according to the contested regulations — until June 2010 (second paragraphs of the grounds for the contested regulations). 169 After stating that ‘those acts fall within the provision of Article 1(3), subpoints (a), (b), (c), (f) and (g) of Common Position 2001/931, and were committed with the aims set out in Article 1(3), points (i) and (iii) thereof’ and that ‘[the LTTE] falls within Article 2(3)(ii) of Regulation No 2580/2001’ (third and fourth paragraphs of the grounds for the contested regulations), the Council refers to decisions that the UK and Indian authorities adopted in 1992, 2001 and 2004 against the LTTE (fifth and sixth paragraphs of the grounds for Implementing Regulations Nos 83/2011 through to 125/2014), as well as in 2012 (sixth and seventh paragraphs of the grounds for Implementing Regulation No 790/2014). 170 As regards the UK decisions and — solely in the grounds for Implementing Regulation No 790/2014 — the Indian decisions, the Council refers to the fact that they are reviewed regularly or are subject to review or appeal. 171 The Council deduces from those considerations that ‘[d]ecisions in respect of the [LTTE] have thus been taken by competent authorities within the meaning of Article 1(4) of Common Position 2001/931’ (seventh paragraphs of the grounds for the contested regulations). 172 Finally, the Council ‘notes that the above decisions … still remain in force, and is satisfied that the reasons for including [the LTTE] on the list [relating to frozen funds] remain valid’ (eighth paragraphs of the grounds for the contested regulations). The Council concludes from this that the LTTE must continue to appear on that list (ninth paragraphs of the grounds for the contested regulations). 173 It should be noted, first of all, that, even though the list of acts drawn up by the Council in the second paragraphs of the grounds for the contested regulations plays a decisive role in the assessment of the appropriateness of continuing the freezing of the LTTE’s funds, since that list is the basis for the finding by the Council of the existence of terrorist acts committed by the LTTE, none of those acts were examined in the national decisions invoked in the fifth and sixth paragraphs of the grounds for Implementing Regulations Nos 83/2011 through to 125/2014 and in the sixth and seventh paragraphs of the grounds for Implementing Regulation No 790/2014. 174 Regarding Implementing Regulations Nos 83/2011 through to 125/2014, all those acts are subsequent to the national decisions relied on in the grounds for those regulations. Accordingly, they cannot have been examined in those decisions. 175 Although the grounds for Implementing Regulations Nos 83/2011 through to 125/2014 state that the national decisions to which they refer have remained in force, they still do not contain any reference to more recent national decisions and, still less, to the grounds of such decisions. 176 In response to the LTTE’s criticisms in this regard, the Council does not produce any more recent decision of the UK or Indian authorities which it proves that it had at its disposal at the time of the adoption of Implementing Regulation Nos 83/2011 through to 125/2014 and from which it is apparent, in concrete terms, that the acts listed in the grounds had actually been examined and confirmed by those authorities. 177 As for the UK procedure, the Council produces only the 2001 decisions referred to in the grounds for the contested regulations. The Council does not produce any subsequent UK decision and, still less, the grounds of such a decision. At most, the Council refers to a decision of the UK Treasury of 7 December 2009 and to the rejections of two applications submitted by the LTTE in 2007 and 2009 seeking its removal from the UK list relating to frozen funds, but does not produce them or give any precise indication as to their specific statement of reasons. 178 In the light of the considerations in paragraphs 138 to 140 above, the Indian judicial decision of 12 November 2010 produced by the Council at the stage of its rejoinders and an Indian judicial decision of 7 November 2012, produced in the Council’s reply of 6 February 2014 to questions put by the General Court, are irrelevant. Furthermore, and for the sake of completeness, it should be noted that those decisions fail to mention, still less rule on, any of the 24, subsequently 21, acts specifically listed in the grounds for Implementing Regulations Nos 83/2011 through to 125/2014. 179 As regards Implementing Regulation No 790/2014, the same considerations as those set out in paragraph 178 above apply with regard to the Indian decisions of 2012 (including the judicial decision of 7 November 2012) mentioned, for the first time, in the seventh paragraph of the grounds for that regulation. 180 As regards the two French decisions of 23 November 2009 and 22 February 2012 (one at first instance and the other on appeal) referred to by the Council in its rejoinder in Case T‑508/11, and which in its view took account of a number of acts listed in the grounds for the contested regulations, the following points should be noted. 181 First, those decisions are not mentioned in the grounds for the contested regulations adopted before the rejoinder. They therefore constitute an attempt to provide a belated statement of reasons, which is inadmissible (see, to that effect, judgments of 12 November 2013 in North Drilling v Council, T‑552/12, EU:T:2013:590, paragraph 26, and of 12 December 2013 in Nabipour and Others v Council, T‑58/12, EU:T:2013:640, paragraphs 36 to 39). 182 Secondly, and more fundamentally, those French decisions are not even mentioned in the contested regulations adopted subsequently to the rejoinder (Implementing Regulations Nos 542/2012, 1169/2012, 714/2013, 125/2014 and 790/2014). The Council cannot claim, as ‘grounds’ for its restrictive measures, national decisions which it does not invoke in the grounds for the contested regulations after it has become aware of those decisions. 183 The considerations set out in paragraphs 180 to 182 above apply equally with regard to a German decision referred to by the Council for the first time at the hearing. 184 In its rejoinder, the Council submits, however, that the acts listed in the statements of reasons ‘fall within a context that all parties have been aware of … the context of the conflict in Sri-Lanka in which the applicant was one of the parties’ and that ‘the aim of this contextual material, based on well-publicised events, was to inform the party against which preventive measures were adopted of the Council’s reasons for its assessment of the terrorist threat the applicant represents’. In order to support its reference to ‘contextual material’, the Council refers to the judgment in PMOI T‑256/07, paragraph 106 above (EU:T:2008:461, paragraph 90). In support of its argument regarding the public knowledge of the acts which it imputes to the LTTE, the Council provides references to press articles from the internet. 185 The Council adds that ‘those factual grounds were not intended to replace any judicial assessment, with the force of res judicata, of the civil or criminal liability of the perpetrators of those acts or of the allegation that those acts were committed by them; that was not their purpose’. It states that ‘these elements were not only public but also perfectly well known to the [LTTE] at the date of the adoption of the [contested regulations]’. 186 Those arguments, combined with the lack of any reference in the grounds for the contested regulations to decisions of competent authorities which are more recent than the imputed acts and referring to such acts, clearly show that the Council based the contested regulations not on assessments contained in the decisions of competent authorities, but on information which it derived from the press and the internet. 187 However, as is apparent from the considerations set out in paragraphs 164 and 165 above, Common Position 2001/931 requires, for the protection of the persons concerned and having regard to the lack of the European Union’s own means of investigation, that the factual basis of a decision of the European Union to freeze funds concerning terrorism be based not on information that the Council derived from the press or the internet, but on information which has been specifically examined and upheld in decisions of competent national authorities within the meaning of Common Position 2001/931. 188 It is only on such a reliable factual basis that the Council can then exercise its broad discretion in the context of the adoption of decisions to freeze funds at EU level, in particular as regards the considerations of appropriateness on which such decisions are based. 189 It is apparent from the foregoing considerations that the Council has failed to comply with those requirements of Common Position 2001/931. 190 The statement of reasons for the contested regulations reveals, moreover, that the Council’s line of reasoning is contrary to the requirements of that common position. 191 Thus, instead of taking, for the factual basis of its assessment, decisions adopted by competent authorities that have taken into consideration the specific acts and acted on the basis of those acts, and then verifying that those acts are indeed ‘terrorist acts’ and that the group concerned is indeed ‘a group’, as defined in Common Position 2001/931, in order to decide, on that basis and in exercising its broad discretion, whether to adopt a decision at EU level, the Council does the reverse in the grounds for the contested regulations. 192 It begins with assessments which are, in actual fact, its own assessments, classifying the LTTE as a terrorist from the first sentence of the grounds — which determines the question which those grounds are supposed to resolve — and imputing to it a series of acts of violence which the Council took from the press and the internet (first and second paragraphs of the grounds for the contested regulations). 193 It should be noted in this respect that the fact that it is a case of a review of the list relating to frozen funds, which therefore takes place after previous examinations, cannot justify that a priori classification. Without ignoring the past, a review of a fund-freezing measure is by definition open to the possibility that the person or group concerned is no longer terrorist at the time of the Council’s decision. It is therefore only at the end of that review that the Council can reach its conclusion. 194 The Council then states that the acts which it imputes to the LTTE fall within the definition of terrorist act within the meaning of Common Position 2001/931 and that the LTTE is a group within the meaning of that position (third and fourth paragraphs of the grounds for the contested regulations). 195 It is only after those remarks that the Council refers to decisions of national authorities (fifth to eighth paragraphs of the grounds for the contested regulations), which, however, at least for Implementing Regulations Nos 83/2011 through to 125/2014, predate the imputed acts. 196 The Council does not seek to show, in the grounds for the latter implementing regulations, that subsequent national review decisions, or other decisions of competent authorities, actually examined and upheld the specific acts set out at the beginning of those grounds. In the grounds for Implementing Regulations Nos 83/2011 through to 125/2014, the Council merely cites the initial national decisions and states, without more, that they remain in force. It is only in the grounds for Implementing Regulation No 790/2014 that the Council mentions national decisions subsequent to the acts specifically imputed to the LTTE, but, once again, fails to show that those decisions — which are moreover irrelevant in the light of the considerations in paragraphs 138 to 140 above — actually examined and upheld the specific acts set out at the beginning of those grounds. 197 The present case is therefore clearly different from the first cases before the Court relating to fund-freezing measures concerning terrorism after the adoption of Common Position 2001/931 (Al-Aqsa v Council, Sison v Council and People’s Mojahedin Organization of Iran v Council). 198 Whereas, in those first cases concerning terrorism, the factual basis of the Council regulations had its origin in decisions of competent national authorities, in the present case, the Council no longer relies on facts which were first of all assessed by national authorities, but itself makes its own independent imputations of fact on the basis of the press or the internet. In so doing, the Council exercises the functions of the ‘competent authority’ within the meaning of Article 1(4) of Common Position 2001/931, which, as the Court of Justice has essentially observed, is neither within its competence according to that common position nor within its means. 199 It is thus to no avail that the Council (see paragraph 184 above) refers in particular to the judgment in PMOI T‑256/07, paragraph 106 above (EU:T:2008:461, paragraph 90). In that case, the acts listed in the grounds for freezing its funds which the Council sent to the People’s Mojahedin Organization of Iran (‘the PMOI’) were not based on independent assessments of the Council, but on assessments of the competent national authority. As is apparent from paragraph 90 of the judgment in PMOI T‑256/07, paragraph 106 above (EU:T:2008:461), the statement of reasons of 30 January 2007 sent to the group concerned (the PMOI) referred to acts of terrorism for which the PMOI was said to be responsible and stated that ‘because of those acts, a decision had been taken by a competent national authority’. The acts listed in the Council’s statement of reasons of 30 January 2007 sent to the PMOI had therefore been examined and upheld against that group by the competent national authority. Unlike the present case, their compilation did not stem from the Council’s own independent assessments. 200 In the same way, in Case T‑348/07, Al-Aqsa v Council, the Court had available to it the text of the decisions of competent authorities relied upon in the grounds for the contested regulations and analysed them in detail. It concluded that the Council had not made any manifest error of assessment in finding that the applicant knew that the funds which it was gathering would be used for the purposes of terrorism (judgment in Al-Aqsa T‑348/07, paragraph 105 above, EU:T:2010:373, paragraphs 121 to 133). According to the findings of the Court, the factual basis on which the Council was working was therefore a fully sound factual basis arising directly from the findings made by the competent national authorities. In the judgment of 11 July 2007 in Al-Aqsa v Council (T‑327/03, EU:T:2007:211) it is also clear from the grounds (paragraphs 17 to 20 of the judgment) that the assessments on which the EU fund-freezing measure was based derived from factual findings which were not specific to the Council but which came from decisions of competent national authorities. 201 Likewise, in Case T‑341/07, Sison v Council, the assessments on which the fund-freezing measure was based derived from factual findings which were not specific to the Council but which came from decisions which had the force of res judicata and had been adopted by competent national authorities (Raad van State (Council of State, Netherlands) and Rechtbank (District Court, Netherlands)) (judgment in Sison T‑341/07, paragraph 114 above, EU:T:2009:372, paragraphs 1, 88 and 100 to 105). 202 It is true that the factual statement of reasons for the contested regulations — the list of acts imputed by the Council to the LTTE in the present case — does indeed not constitute, to repeat the Council’s argument (see paragraph 185 above), a ‘judicial assessment with the force of res judicata’. Nevertheless that factual statement of reasons for the contested regulations played a decisive role in the Council’s assessment of the appropriateness of maintaining the LTTE on the list relating to frozen funds and the Council, far from establishing that it derived that statement of reasons from decisions of competent authorities, in fact attests to having relied on information derived from the press and the internet. 203 The Court considers that that approach contravenes the two-tier system established by Common Position 2001/931 on terrorism. 204 Although, as the Court of Justice has observed, the essential question during a review is whether, since the inclusion of the person concerned in the list relating to frozen funds or since the last review, the factual situation has changed in such a way that it is no longer possible to draw the same conclusion concerning the involvement of that person in terrorist activities (judgment in Al-Aqsa C‑539/10, paragraph 105 above, EU:C:2012:711, paragraph 82) — with the consequence that the Council may, if necessary and within the context of its broad discretion, decide to maintain a person on the list relating to frozen funds in the absence of a change in the factual situation — the fact remains that any new terrorist act which the Council inserts in its statement of reasons during that review for the purposes of justifying maintaining the person concerned on the list relating to frozen funds must, in the two-tier decision-making system of Common Position 2001/931 and because of the Council’s lack of means of investigation, have been the subject of an examination and a decision by a competent authority within the meaning of that common position. 205 The Council and the Commission suggest to no avail that the lack of reference in the grounds for the contested regulations to specific decisions of competent authorities which specifically examined and upheld the acts set out at the top of those grounds is attributable to the LTTE, which, according to the Council and the Commission, could and should have challenged the restrictive measures concerning it at national level. 206 Firstly, the obligation upon the Council to base its fund-freezing decisions as far as concerns terrorism on a factual basis deriving from decisions of competent authorities arises directly from the two-tier system established by Common Position 2001/931, as confirmed by the judgment in Al-Aqsa C‑539/10, paragraph 105 above (EU:C:2012:711, paragraphs 68 and 69). That obligation is not therefore subject to the action by the person or group concerned. On the basis of its duty to state reasons, which is an essential procedural requirement, the Council must state, in the grounds for its fund-freezing decisions, the decisions of competent national authorities which specifically examined and found the terrorist acts which it uses as a factual basis for its own decisions. 207 Secondly, the argument advanced by the Council and Commission ultimately merely confirms the finding, which has already been made in paragraph 186 above, that the Council in fact relied not on assessments contained in decisions of competent authorities, but on information which it derived from the press and the internet. In this respect, it is paradoxical that the Council complains that the LTTE did not challenge at national level factual imputations which it does not itself manage to link to any specific decision of a competent authority. 208 Finally, that argument is problematic to say the least, inasmuch as it suggests that the national fund-freezing decisions on which the Council decides to rely in its specific practice under Common Position 2001/931, might themselves, if no dispute has been raised by the party concerned at national level, not be based on any specific act of terrorism. 209 It is also to no avail that the Council and the Commission dispute the obligation to derive the factual basis of the fund-freezing regulations from decisions of competent authorities on the ground that that could lead, in the absence of such decisions, to unjustified removals of persons or groups from the list relating to frozen funds. The Council and the Commission refer in particular to the fact that the timing of review in the Member States may differ from the biannual review applicable at EU level. 210 Firstly, once again, that dispute is inconsistent with Common Position 2001/931 (Article 1(4) of Common Position 2001/931), as confirmed by the judgment in Al-Aqsa C‑539/10, paragraph 105 above (EU:C:2012:711, paragraphs 68 and 69), which requires, for the protection of the persons concerned and having regard to the lack of the European Union’s own means of investigation, that the factual basis of a decision of the European Union to freeze funds concerning terrorism be based on information which has been specifically examined and upheld in decisions of competent national authorities within the meaning of Common Position 2001/931. Secondly, it should be noted that, in the two-tier system of that Common Position and for the purposes of ensuring the effectiveness of the fight against terrorism, it is for the Member States to regularly transmit to the Council, and for the Council to collect, the decisions of competent authorities adopted within those Member States, as well as the grounds for those decisions. 211 Moreover, that necessary transmission and collection of decisions of competent authorities corresponds exactly to the circulation of information provided for, inter alia, in paragraphs 2, 3, 8 and 24 of the document entitled ‘Working methods of the Working Party on implementation of Common Position 2001/931 on the application of specific measures to combat terrorism’ which is set out in Annex II to Council document 10826/1/07 REV 1 of 28 June 2007. 212 If, despite that transmission of information, a decision of a competent authority concerning a specific act capable of constituting a terrorist act is not available to the Council, the Council, in the absence of its own means of investigation, must ask a competent national authority to assess that act, with a view to a decision being taken by that authority. 213 For this purpose, the Council may contact the 28 EU Member States and in particular the Member States which have already examined the situation of the person or group concerned. It may also contact a third State which satisfies the conditions required with regard to protection of the rights of defence and of the right to effective judicial protection. The decision in question, which must, in the words of Common Position 2001/931, be an ‘instigation of investigations or prosecution … or [a] condemnation’, does not necessarily have to be the national decision periodically reviewing the placement of the person or group concerned on the national list relating to frozen funds. Even in the latter case, however, the existence at national level of a timing of periodic review which is different from that in force at EU level cannot justify the deferral by the Member State concerned of the examination of the act in question which the Council has requested. Having regard both to the two-tier structure of the system established by Common Position 2001/931 and to the mutual duties of sincere cooperation existing between the Member States and the European Union, the Member States must respond without delay to the Council’s requests to them for an assessment and, where appropriate, a decision of a competent authority within the meaning of Common Position 2001/931 of an act capable of constituting a terrorist act. 214 It follows from the foregoing considerations that the argument that the requirement of a decision by a competent authority might lead to unjustified removals from the list relating to frozen funds is unconvincing. 215 It should be added, moreover, that the absence of any new terrorist act in respect of a given six month period does not in any way mean that the Council should withdraw the person or group concerned from the list relating to frozen funds. As the Court has already found, nothing in the provisions of Regulation No 2580/2011 and of Common Position 2001/931 precludes the imposition or maintenance of restrictive measures on persons or entities that have in the past committed acts of terrorism, despite the lack of evidence to show that they are at present committing or participating in such acts, if the circumstances warrant it (see, to that effect, the judgment in PMOI T‑256/07, paragraph 106 above, EU:T:2008:461, paragraphs 107 to 113). Thus, the obligation to make new imputations of terrorist acts only on the basis of decisions of competent authorities does not in any way preclude the Council’s right to maintain the person concerned on the list relating to frozen funds, even after the cessation of the terrorist activity in the strict sense, if the circumstances warrant it. 216 The possibility, also mentioned by the Council and the Commission, that decisions of competent authorities which are incompatible with decisions of the European Union might be adopted cannot constitute a valid reason for challenging the obligation to derive, in the interest of the protection of the persons and groups concerned, the factual basis of the decisions of the European Union from decisions of competent authorities. 217 Finally, contrary to what by the Council and the Commission suggest, such an obligation to derive the factual basis of the fund-freezing regulations from decisions of competent authorities is not such as to give rise to a risk of unjustifiably maintaining a person or group on the list relating to frozen funds. 218 Although Article 1(1) to (4) and (6) of Common Position 2001/931 precludes the Council from including, in the statement of reasons for its decision to place or maintain a person or group on the list relating to frozen funds, terrorist acts (including attempts, participation in or facilitation of such acts) which have not been the subject of a decision of a competent authority (instigation of investigations or prosecutions, or condemnation), Common Position 2001/931 does not contain any comparable obligation as regards the non-maintenance by the Council of a person or group in the list relating to frozen funds. That decision not to maintain them on the list, which is favourable to the person or group concerned, is not subject to the same procedural requirements, even though, in the majority of cases, it will take place in the light of favourable decisions adopted at national level, such as an abandonment or discontinuance of investigations or prosecutions for terrorist acts, an acquittal in criminal proceedings or indeed the withdrawal of the person or group concerned from the national classification list. 219 It follows from the considerations set out in paragraphs 209 to 218 above that the Council and the Commission are wrong in claiming that the obligation on the Council to derive the factual basis of its fund-freezing decisions from decisions of competent authorities is such as to undermine the European Union’s policy of combating terrorism. 220 It should be added that the Court’s overall findings made above do not exceed the scope of the limited review which it is to carry out, whereby it is to check that the procedure has been complied with and that the facts are materially accurate, but without thereby calling in question the Council’s broad discretion. In fact, in the judgment in Sison T‑341/07, paragraph 114 above (EU:T:2009:372), the Court was prompted to check — and was able to find — that the factual allegations made against Mr Sison set out in the grounds for maintaining his name on the list relating to frozen funds were duly substantiated by the findings of fact made in the decisions of the Netherlands authorities (Raad van State and Rechtbank) on which the Council relied in those grounds (judgment in Sison T‑341/07, paragraph 114 above, EU:T:2009:372, paragraphs 87 and 88). 221 By contrast, in the present case, in the grounds for the contested regulations there are no references to any decision of a competent authority to whose grounds the Court could link the factual evidence upheld by the Council against the LTTE. 222 Furthermore, and once more with regard to the judgment in Sison T‑341/07, paragraph 114 above, (EU:T:2009:372), it should be noted that, while finding that the facts set out in the grounds for the Council’s regulations did indeed come from the two Dutch decisions relied on in those same grounds, the Court none the less then held that those Dutch decisions were not decisions of competent authorities, on the ground that they did not concern the imposition on the person concerned of measures of a preventive or punitive nature in connection with the combating of terrorism (judgment in Sison T‑341/07, paragraph 114 above, EU:T:2009:372, paragraphs 107 to 115). 223 If the Court was thus able dismiss the findings of fact nevertheless stemming from competent authorities on the ground that the decisions of those authorities were not ‘condemnations or instigations of investigations or prosecutions’, that implies that it cannot, in the present case, grant press articles — which are in any event not mentioned in the grounds for the contested regulations — the procedural and probative status reserved by Common Position 2001/931 only for decisions of competent authorities. 224 Finally, the Court considers it appropriate to underline the importance of the guarantees provided by fundamental rights in that context (see Opinion in France v People’s Mojahedin Organization of Iran, C‑27/09 P, ECR, EU:C:2011:482, paragraphs 235 to 238). 225 In the light of all the foregoing considerations, from which it is apparent that Regulation No 2580/2001 is applicable in the case of armed conflict and, moreover, that the Council infringed both Article 1 of Common Position 2001/931 and — in the absence of a reference in the statement of reasons to decisions of competent authorities relating to the acts imputed to the LTTE — the obligation to state reasons, the contested regulations should be annulled in so far as they concern the LTTE. 226 The Court stresses that those annulments, on fundamental procedural grounds, do not imply any substantive assessment of the question of the classification of the LTTE as a terrorist group within the meaning of Common Position 2001/931. 227 So far as concerns the temporal effects of those annulments, it must be borne in mind that, under the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union, by way of derogation from Article 280 TFEU, decisions of the General Court declaring a regulation to be void are to take effect only as from the date of expiry of the appeal period referred to in the first paragraph of Article 56 of that statute or, if an appeal has been brought within that period, as from the date of dismissal of the appeal. In any event, the Council therefore has a minimum period of two months, extended on account of distance by 10 days, as from the notification of this judgment, to remedy the infringements established by adopting, if appropriate, a new restrictive measure with respect to the LTTE. 228 However, and on the basis of the second paragraph of Article 264 TFEU, the General Court may provisionally maintain the effects of the annulled decision (see, to that effect, the judgment in Kadi and Al Barakaat International Foundation v Council and Commission, paragraph 128 above, EU:C:2008:461, paragraphs 373 to 376, and the judgment of 16 September 2011 in Kadio Morokro v Council, T‑316/11, EU:T:2011:484, paragraph 39). 229 In the circumstances of the present case, the Court finds that, to avoid the risk of a serious and irreversible impairment of the effectiveness of the restrictive measures, while taking account of the major impact of the restrictive measures in question on the rights and freedoms of the LTTE, the effects of Implementing Regulation No 790/2014 must, by virtue of Article 264 TFEU, be maintained for a period of three months following delivery of this judgment. Costs 230 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the LTTE. 231 Under the first subparagraph of Article 87(4) of the Rules of Procedure, Member States and institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Kingdom of the Netherlands, the United Kingdom and the Commission are to bear their own costs. On those grounds, THE GENERAL COURT (Sixth Chamber, Extended Composition) hereby: 1. Annuls Council Implementing Regulation (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 in so far as those measures concern the Liberation Tigers of Tamil Eelam (LTTE); 2. Maintains the effects of Implementing Regulation No 790/2014 for three months following delivery of this judgment; 3. Orders the Council of the European Union to pay, in addition to its own costs, the costs of the LTTE; 4. Orders the Kingdom of the Netherlands, the United Kingdom of Great Britain and Northern Ireland and the European Commission to bear their own respective costs. Dehousse Wiszniewska-Białecka Buttigieg Collins Ulloa Rubio Delivered in open court in Luxembourg on 16 October 2014. [Signatures] Table of contents Facts and procedure Forms of order sought Law The first plea in law: inapplicability of Regulation No 2580/2001 to the conflict between the LTTE and the Government of Sri-Lanka Arguments of the parties Findings of the Court The third plea in law: lack of any decision taken by a competent authority Arguments of the parties Findings of the Court The fourth to sixth pleas, taken together with the second plea Arguments of the parties Findings of the Court Costs * Language of the case: English.