Opinion of the Advocate General — ECLI:EU:C:2016:734
Date: 2016-09-29
Language of the case: Dutch
Subject matter: External relations;Common foreign and security policy;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Netherlands

Summary record of its meetings at the seventieth session, A/C.6/70/SR.1, 2, 3, 4, 5, 27 and 29. 13 – U.N.T.S., Vol. 2149, p. 256. 14 – U.N.T.S., Vol. 2178, p. 197. 15 – That list includes, inter alia, the International Convention against the Taking of Hostages (see further point 25 below) (point 4) and the International Convention for the Suppression of Terrorist Bombings (point 9). 16 – U.N.T.S., Vol. 2445, p. 89. 17 – Austria, Belgium, Croatia, Cyprus, the Czech Republic, Denmark, Finland, France, Germany, Hungary, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom. 18 – CETS No 196. 19 – The 22 following Member States are parties to the convention: Austria, Bulgaria, Croatia, Cyprus, Denmark, Estonia, Finland, France, Germany, Hungary, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden. 20 – United Nations Treaties Series, Vol. 1316, p. 205. 21 – OJ 2012 C 326, p. 391. 22 – Common Position of 27 December 2001 on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93), as amended. 23 – Regulation of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70), as last amended. 24 – See point 38 below. 25 – See point 32 above. 26 – Articles 5 and 6 concern the addition of interest due to frozen accounts; specific authorisations to use and make payments from frozen accounts; and specific authorisations to unfreeze funds, other financial assets or other economic resources, to make such assets and resources available and to deliver financial services. 27 – See also recital 12. 28 – Framework Decision of 13 June 2002 on combating terrorism (OJ 2002 L 164, p. 3), as amended. 29 – It was the European Parliament which recommended adding a recital distinguishing terrorist groups from groups in the European Union who resist totalitarian regimes and repression in third countries or who support such resistance. The objective was to ensure that the latter were not defined as terrorists whilst not preventing them from being prosecuted and punished for offences under national criminal laws: see European Parliament, Report on the Commission proposal for a Council framework decision on combating terrorism (COM(2001) 521). 30 – See point 32 above. 31 – Common Position of 29 May 2006 updating Common Position 2001/931 and repealing Common Position 2006/231 (OJ 2006 L 144, p. 25). 32 – Decision of 29 May 2006 implementing Article 2(3) of Regulation (EC) No 2580/2001 and repealing Decision 2005/930/EC (OJ 2006, L 144, p. 21). 33 – Implementing Regulation of 12 July 2010 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation (EU) No 1285/2009 (OJ 2010 L 178, p. 1). See Article 1 and item 2.17 of the list set out in the Annex. 34 – Implementing Regulation of 21 December 2015 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation (EU) 2015/1325 (OJ 2015 L 334, p. 1). 35 – See point 10 above. 36 – Judgment of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 83. The lodging of the applications by the LTTE before the General Court (on 11 April and 28 September 2011 respectively) postdates both the designation orders (8 June 2010) and the contested decisions (25 November 2010, 8 December 2010 and 10 January 2011). 37 – Council v LTTE, C‑599/14 P (pending before the Court), in which I delivered my Opinion on 22 September 2016 . 38 – See, most recently, judgment of 8 June 2016, Hünnebeck, C‑479/14, EU:C:2016:412, paragraph 30 and the case-law cited. 39 – Otherwise that question would be hypothetical. 40 – See, in that regard, judgment of 17 February 2011, Bolton Alimentari, C‑494/09, EU:C:2011:87, paragraph 21. 41 – Judgment of 27 November 2012, Pringle, C‑370/12, EU:C:2012:756 (‘the judgment in Pringle’), paragraph 39 and the case-law cited. 42 – Judgment of 22 October 1987, Foto-Frost, 314/85, EU:C:1987:452, paragraphs 14 and 15. See also judgments of 10 January 2006, IATA and ELFAA, C‑344/04, EU:C:2006:10, paragraphs 27 and 30, and of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625 (‘the judgment in Inuit I’), paragraph 95. 43 – See judgment of 9 March 1994, TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90 (‘the judgment in TWD’), paragraphs 17 and 18. That case involved a Commission decision addressed to a Member State that referred expressly to the recipient of the individual aid (TWD); the Member State had communicated the decision to that recipient. 44 – See judgment in Pringle, paragraph 41 and the case-law cited. 45 – See judgment of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraph 29 and the case-law cited. 46 – Judgment in TWD, paragraph 16. 47 – Judgment of 29 June 2010, E and F, C‑550/09, EU:C:2010:382 (‘the judgment in E and F’). 48 – Judgment in E and F, paragraphs 49 to 52 and the case-law cited. 49 – Judgment in Inuit I, paragraphs 70 and 71. 50 – See, inter alia, judgments of 5 May 1998, Glencore Grain v Commission, C‑404/96 P, EU:C:1998:196, paragraph 41; of 29 June 2004, Front national v Parliament, C‑486/01 P, EU:C:2004:394, paragraph 34; of 10 September 2009, Commission v Ente per le Ville vesuviane and Ente per le Ville vesuviane v Commission, C‑445/07 P and C‑455/07 P, EU:C:2009:529, paragraph 45 and the case-law cited; and of 17 September 2015, Confederazione Cooperative Italiane and Others v Anicav and Others, C‑455/13 P, C‑457/13 P and C‑460/13 P, EU:C:2015:616, paragraph 46 and the case-law cited. 51 – Judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284 (‘the judgment in T & L Sugars’), paragraph 63 and the case-law cited. 52 – Judgment in Inuit I, paragraphs 55 to 57; see also paragraphs 70 and 71. 53 – Judgments in T & L Sugars, paragraph 29 and the case-law cited, and of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852 (‘the judgment in Telefónica’), paragraph 27. See also the ‘Final report of the discussion circle on the Court of Justice’, CONV 636/03, paragraph 21. 54 – Judgment in Pringle, paragraph 41 and the case-law cited. See also judgment of 28 April 2016, Borealis Polyolefine and Others, C‑191/14, C‑192/14, C‑295/14, C‑389/14 and C‑391/14 to C‑393/14, EU:C:2016:311, paragraphs 46 to 49 (the reasoning there suggests that the Court implicitly accepted the application of the TWD exception as regards the third limb). 55 – Judgment in Pringle, paragraph 42. The issue was whether that decision had or should have been adopted in accordance with the simplified revision procedure in Article 48(6) TEU. 56 – Judgment in Inuit I, paragraphs 75 and 76. 57 – Such as the persons and entities named in the Article 2(3) list. 58 – Judgment in Inuit I, paragraph 60. 59 – Article 289(3) TFEU. 60 – See, for example, judgment of 15 June 1993, Abertal and Others v Commission, C‑213/91, EU:C:1993:238, paragraph 19. 61 – See points 36 and 37 above. See also judgment in E and F, paragraph 51 and the case-law cited. 62 – See, to that effect, judgments of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraphs 241 to 244, and of 23 April 2013, Gbagbo and Others v Council, C‑478/11 P to C‑482/11 P, EU:C:2013:258, paragraph 56. 63 – See, to that effect, judgment of 11 July 1984, Commune de Differdange and Others v Commission, 222/83, EU:C:1984:266, paragraphs 10 to 12. 64 – Judgment of 23 April 1986, Les Verts v Parliament, 294/83, EU:C:1986:166, paragraph 31. 65 – See, in that regard, judgment in Telefónica, paragraphs 27 to 29. 66 – See paragraphs 40 to 42. The mechanism in question is set out at paragraph 3 of the judgment, which reproduces paragraphs 39 to 45 of the General Court’s judgment under appeal. T & L had argued that the only role left to the Member States was to act merely as a ‘mailbox’ (paragraph 18). The Commission maintained that the national measures in question were important and necessary (paragraph 24). 67 – See paragraphs 30 and 31. 68 – It is worth noting in that regard that the Court held in the T & L Sugars judgment that since the applicants were not included specifically in the parties to which the legislation at issue applied (the applicants were cane sugar refiners and the legislation covered sugar producers) their legal situation was not directly affected by the legislation and it was not of direct concern to them (see paragraph 37). 69 – See point 45 above. 70 – That provision, which concerns relations between the CFSP and other EU competences, is not relevant in the present case. 71 – See point 42 of this Opinion. 72 – Opinion of Advocate General Wathelet in Rosneft, C‑72/15, EU:C:2016:381, points 38 and 62 to 66. 73 – Article 21(1) TEU. 74 – Opinion of Advocate General Wathelet in Rosneft, C‑72/15, EU:C:2016:381, points 73 to 76. 75 – See judgments in Inuit I, paragraph 50, and Pringle, paragraph 135. 76 – Article 1(4) of Regulation No 2580/2001. 77 – See judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711 (‘the judgment in Al-Aqsa’), paragraph 67 and the case-law cited. 78 – See point 40 above. 79 – Recital 6 of Framework Decision 2002/475; see also Article 1(1). 80 – See judgment in Al-Aqsa, paragraph 67 and the case-law cited. 81 – See, to that effect, judgment of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 73. As I have said, that point has not been appealed by the Council (see point 51 above). 82 – See, for example, judgment of 11 April 2013, Della Rocca, C‑290/12, EU:C:2013:235, paragraph 38 and the case-law cited. 83 – See, to that effect, judgment of 21 December 2011, Air Transport Association of America andOthers, C‑366/10, EU:C:2011:864, paragraph 101 and the case-law cited. 84 – See, for example, judgment of 15 March 2012, SCF Consorzio Fonografici, C‑135/10, EU:C:2012:140, paragraph 51 and the case-law cited. See also the Opinion of Advocate General Mengozzi in Diakite, C‑285/12, EU:C:2013:500, points 23 and 24. 85 – See, for example, judgments of 10 September 1996, Commission v Germany, C‑61/94, EU:C:1996:313, paragraphs 52 to 58, and of 1 April 2004, Bellio F.lli, C‑286/02, EU:C:2004:212, paragraph 33. 86 – Judgment of 24 November 1992, Poulsen and Diva Navigation, C‑286/90, EU:C:1992:453, paragraph 9. See also, for example, judgment of 15 January 2015, Evans, C‑179/13, EU:C:2015:12, paragraph 35. 87 – Judgment of 3 June 2008, The International Association of Independent Tanker Owners andOthers, C‑308/06, EU:C:2008:312. 88 – Paragraph 52. 89 – Reviewing the validity of EU secondary law on grounds of international law (either international agreements or customary rules of international law) remains exceptional as it is subject to very strict conditions. Concerning international agreements, see, most recently, judgment of 4 February 2016, C & J Clark International, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 84. Concerning customary rules of international law, see judgment of 21 December 2011, Air Transport Association of America andOthers, C‑366/10, EU:C:2011:864, paragraphs 101, 102 and 107. 90 – See point 4 above. 91 – See point 100 above, and the case-law cited. 92 – Common Article 3(1)(a) and (b). In its judgment of 27 June 1986 in Nicaragua v. United States, the International Court of Justice judged that the rules contained in Common Article 3 ‘constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts’ and which reflect ‘elementary considerations of humanity’ (ICJ Reports, 1984, p. 392, paragraph 218). 93 – See, in that regard, Gasser, H.-P., ‘Acts of terror, “terrorism” and international humanitarian law’, International Review of the Red Cross, 2002, p. 560. 94 – As regards international armed conflicts, see Article 51(2) of Protocol I and Article 33(1) of the Fourth Geneva Convention. 95 – See Article 1(3), which refers to Common Article 2 of the Geneva Conventions. 96 – That would be so if the conflict constituted an armed conflict in which ‘peoples [were] fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination’ (Article 1(4) of Protocol I). 97 – Article 51(2) of Protocol I. 98 – Pfanner, T., ‘Scope of Application, Perpetrators of Terror, and International Humanitarian Law’, in: Fernández-Sánchez (Ed.), International Legal Dimensions of Terrorism (Martinus Nijhoff Publishers, 2009), p. 289. 99 – What all the authorities in power are required to do is endeavour to grant those participants the broadest possible amnesty at the end of the hostilities (Article 6(5) of Protocol II). ‘In non-international armed conflict, combatant and prisoner of war status are not provided for, because States are not willing to grant members of armed opposition groups immunity from prosecution under domestic law for taking up arms’ (ICRC, ‘The relevance of IHL in the context of terrorism’, www.icrc.org/eng/resources/documents/faq/terrorism-ihl-210705.htm, accessed 4 July 2016). 100 – Article 3(1) of Protocol II states that ‘nothing in [that Protocol] shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State’. 101 – Those measures can address actions which the State regards as terrorism but not only such actions (for example, high treason or espionage might also be targeted). 102 – See also 2016 ICRC Commentary, Common Article 3, paragraph 514, and points 111 to 121 below. 103 – See, inter alia, Pejic, J., ‘Terrorist Acts and Groups: A Role for International Law?’, British Yearbook of International Law, 2004, pp. 75 and 76, and Sassóli, M., ‘Terrorism and War’, Journal of International Criminal Justice, 2006, p. 970. As Sassóli notes, ‘if every act committed against State forces is “terrorist”, as some suggest, this weakens [international humanitarian law] and the willingness of armed groups to comply with IHL’. See Sassóli, M., ‘The Role of Human Rights and International Humanitarian Law in New Types of Armed Conflicts’, in: Ben-Naftali, O. (Ed.), International Humanitarian law and International Human Rights Law (Oxford, OUP 2011, p. 37). 104 – By that expression, I mean that the provision merely sets out objectives and therefore does not aim to create rights or obligations for individuals. 105 – The Diplomatic Conference which adopted Protocol II rejected the proposal made by the International Committee of the Red Cross (ICRC) to require courts, in case of prosecutions carried out against participants to a non-international armed conflict, to take into consideration, to the greatest possible extent, the fact that the accused person respected the provisions of Protocol II. See ICRC, Draft Additional Protocols to the Geneva Conventions of 12 August 1949, Commentary, Geneva, 1973, p. 141 (Article 10(5)). 106 – See point 107. 107 – Conversely, they could (in theory) be regarded as war crimes. The applicants in the main proceedings also briefly express doubt that the LTTE was effectively responsible for these attacks and kidnappings. However, they do not advance any specific element capable of calling the Council’s position into question. 108 – See point 34 above. 109 – Judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 294. 110 – See point 48 above. 111 – See point 100 above and the case-law cited. 112 – Article 19(2). 113 – The LTTE has been inserted on the EU list as a result of, inter alia, what the Council has termed ‘kidnappings’ between 2005 and 2009: see point 48 above. For the purposes of this analysis, I do not perceive any meaningful difference between that expression and the term ‘hostage-taking’ as used in the Hostages Convention. 114 – See Common Article 3(1)(b) of the Geneva Conventions and Article 4(2)(c) of Protocol II. 115 – T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 64. 116 – See in particular point 110 of this Opinion.