Judgment — ECLI:EU:T:2015:812
Date: 2015-10-28
Language of the case: English
Court formation: Seventh Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - unfounded
Origin: United Kingdom

summary of reasons provided by the Sanctions Committee, so that that individual is in a position to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in bringing an action before the Courts of the European Union (judgment in Kadi II, cited in paragraph 23 above, EU:C:2013:518, paragraph 111). 64 When that disclosure takes place, the competent EU authority must ensure that that individual is placed in a position in which he may effectively make known his views on the grounds advanced against him (see judgment in Kadi II, cited in paragraph 23 above, EU:C:2013:518, paragraph 112 and the case-law cited). 65 Thus, when comments are made by the individual or entity concerned on the summary of reasons, the competent EU authority is under an obligation to examine, carefully and impartially, whether the alleged reasons are well founded, in the light of those comments and any exculpatory evidence provided with those comments (see judgment in Kadi II, cited in paragraph 23 above, EU:C:2013:518, paragraph 114 and the case-law cited). 66 In the present case, first, it must be noted that Article 7c(3) of Regulation No 881/2002, as amended by Council Regulation (EU) No 1286/2009 of 22 December 2009 amending Regulation No 881/2002 (OJ 2009 L 346, p. 42), provides for a review procedure where the persons concerned submit observations in relation to their listing. Accordingly, where observations are submitted, the Commission is to review the decision to include the person concerned in the list at issue, in the light of those observations, in accordance with the procedure referred to in Article 7a(3) of Regulation No 881/2002. That procedure, expressly mentioned in recital 6 in the preamble to Regulation No 1139/2010, entails consultation of the EU Committee for Review of Listings. The Commission consulted that committee on 16 April 2010, eight months before Regulation No 1139/2010 was published, and, under point 4.2 of its agenda, the grounds for the listings of Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah were reviewed. 67 Furthermore, it must be noted that the Commission contacted the Sanctions Committee on 27 May 2010, sent it the observations submitted by Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah concerning their listings, and invited it to submit observations in that respect. The Sanctions Committee confirmed the listings of Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah to the Commission by letter of 14 September 2010, and also informed it of the fact that a request for removal had not been approved, which gave rise to a further letter from the Commission of 26 October 2010 seeking clarification of the reasons for the rejection of that request. On 3 May 2011, the Commission received a reply from the Sanctions Committee informing it of the removal of the three applicants’ names from the list, which prompted the Commission to interrupt the review procedure and remove the names of Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah from the list by means of Implementing Regulation No 640/2011. 68 Secondly, it is apparent from the documents in the file and the submissions at the hearing that the Commission informed Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah of the grounds for their inclusion on the list at issue. Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah were, moreover, able to communicate their observations to the Commission by letter of 13 August 2010. Consequently, Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah are not justified in maintaining that they did not have the necessary information for the review procedure. 69 Thirdly, as regards the Commission’s alleged delay in the review procedure, invoked by Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah, it must be noted that Article 7c of Regulation No 1286/2009 does not impose a fixed time-limit in respect of the review procedure and, moreover, that the names of Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah were removed from the list at issue by Implementing Regulation No 640/2011, that is six months after they were listed. That removal resulted in the closure of the review procedure previously initiated, since that procedure had become devoid of purpose. Furthermore, a matter being dealt with within the six months following the listing does not appear to constitute an excessively long administrative procedure. In addition, it is apparent from the documents in the file that the Commission was not inactive in dealing with the matter during that period, since, inter alia, it contacted the Member States and the Sanctions Committee. Consequently, Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah are wrong to criticise the Commission for delay in the review procedure in view, in particular, of the need for the Commission to consult the Sanctions Committee. 70 Fourthly, as regards the argument of Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah that the Commission reproduced the conclusions of the Sanctions Committee automatically and without a hearing, it is evident from the documents provided by the Commission and, in particular, its correspondence with the Sanctions Committee, first, that the Commission carried out a careful, independent and critical review of the parties’ observations, as well as of the listing decided upon by the Sanctions Committee, and, secondly, that the conclusions of the Sanctions Committee were not reproduced automatically, but on the contrary were subject to thorough personal scrutiny. Accordingly, the Commission has respected the three procedural guarantees referred to by the Court of Justice in the judgment in Kadi II, cited in paragraph 23 above (EU:C:2013:518), in particular the careful and impartial examination as to whether the alleged reasons are well founded in the light of the comments made and any evidence provided. 71 The first plea in law must therefore be rejected. The second plea in law, alleging breach of the obligation to state reasons 72 Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah claim that the review undertaken by the Commission was flawed because of the vague and insufficient nature of the statements of reasons, which prevented the applicants from being able to contest the allegations made against them. Moreover, the Commission neither gave details of the evidence on which those grounds were based nor responded to the observations or to the factual assertions made by Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah. 73 The Commission, supported by the Council, disputes the arguments put forward by Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah. 74 As regards the obligation to state reasons, it must be borne in mind that, according to a consistent body of case-law, the purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the Courts of the European Union and, secondly, to enable those Courts to review the legality of that act (judgments of 2 October 2003 in Corus UK v Commission, C‑199/99 P, ECR, EU:C:2003:531, paragraph 145; of 29 September 2011 in Elf Aquitaine v Commission, C‑521/09 P, ECR, EU:C:2011:260, paragraph 148; and of 15 November 2012 in Council v Bamba, C‑417/11 P, ECR, EU:C:2012:718, paragraph 49). 75 It is also settled case-law that the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review (judgments of 2 April 1998 in Commission v Sytraval and Brink’s France, C‑367/95 P, ECR, EU:C:1998:154, paragraph 63; of 10 July 2008 in Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, ECR, EU:C:2008:392, paragraph 166; and of 15 November 2012 in Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 138). 76 Lastly, without going so far as to require a detailed response to the comments made by the individual concerned, the obligation to state reasons laid down in Article 296 TFEU 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 (judgment in Kadi II, cited in paragraph 23 above, EU:C:2013:518, paragraph 116). 77 Consequently, 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. 78 In the present case, recital 6 in the preamble to Regulation No 1139/2010 indicates that Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah have had an opportunity to submit observations on the Commission’s statements of reasons. In addition, as regards the reasons given in those statements, it must be noted, as does the Commission, that the statements of reasons provided to Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah give an explanation with names, dates and specific facts to support the reasons for including them on the list at issue, thus enabling them to articulate their defence. Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah admitted that they were aware of the content of the statements of reasons, as is evident from the documents in the file and exchanges during the hearing. 79 The reasons given in the statements of reasons are also based on additional detailed information, containing indicia common to Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah, namely fundraising, the provision of identity documents, transfer of funds for terrorist activities, involvement in the management of Sanabel and membership of the LIFG. Furthermore, as regards Mr Al-Faqih, mention must also be made of his conviction by the criminal courts of a Member State and of a third country. This information is, moreover, contained in the annexes to the application. 80 Accordingly, the second plea in law must be rejected. The third plea in law, alleging breach of the right to property and of the right to respect for private life 81 Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah argue that the Commission has not established to the requisite standard of proof that, at the time of the present application, they met the criteria set out in United Nations Security Council Resolution 1617 (2005). The ‘criminal standard of proof’ is relevant, according to Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah, in light of the length of time for which they have been listed and the severe and harsh impact of the listings on them. 82 The Commission, supported by the Council, disputes the arguments put forward by Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah. 83 It will be recalled that, under Article 44(1)(c) of the Rules of Procedure of 2 May 1991, an application initiating proceedings must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based, and that statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the application. It is therefore necessary for the essential points of law and of fact on which a case is based to be indicated coherently and intelligibly in the application itself (judgment of 9 January 2003 in Italy v Commission, C‑178/00, ECR, EU:C:2003:7, paragraph 6). 84 The application must accordingly specify the nature of the grounds on which the action is based, so that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure of 2 May 1991 (judgments of 12 January 1995 in Viho v Commission, T‑102/92, ECR, EU:T:1995:3, paragraph 68, and of 22 November 2006 in Italy v Commission, T‑282/04, EU:T:2006:358, paragraph 60). 85 Moreover, since the requirements under Article 44(1) of the Rules of Procedure of 2 May 1991 are a matter of public policy, it is for the Court to raise of its own motion the argument that those requirements have not been satisfied (judgments of 10 July 1990 in Automec v Commission, T‑64/89, ECR, EU:T:1990:42, paragraph 74, and of 14 February 2012 in Italy v Commission, T‑267/06, EU:T:2012:69, paragraphs 35 to 38). 86 In the present case, it must be noted that the arguments put forward by Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah in respect of breach of the right to property have not been developed. On the contrary, the points emphasised in the application relate to evidential requirements under criminal law. 87 At the hearing, the Court questioned Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah about the scope of the present plea. They explained that, by that plea, they were seeking to challenge the substance of the statements of reasons on which the Commission had based their relisting in the contested measures. They referred to that effect to paragraphs 65, 94 and 95 of the application and to their observations on the consequences of the judgment in Kadi II, cited in paragraph 23 above (EU:C:2013:518, paragraph 5) (see paragraph 28 above). 88 In that regard, it must be borne in mind that, according to the case-law cited in paragraph 82 above, the pleas on which the action is based must be set out in the application. The few references to paragraphs 94 and 95 of the application are purely abstract and do not relate to any of the grounds set out in the statements of reasons referred to above. Contrary to what is asserted by Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah, the failure to provide a clear and comprehensible explanation of the reasoning in the application cannot be cured by a reference to the annexes to the application, as is suggested in paragraph 65 of the application. 89 It is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (judgments of 7 November 1997 in Cipeke v Commission, T‑84/96, ECR, EU:T:1996:174, paragraph 34; of 21 March 2002 in Joynson v Commission, T‑231/99, ECR, EU:T:2002:84, paragraph 154; and of 14 December 2005 in Honeywell v Commission, T‑209/01, ECR, EU:T:2005:455, paragraph 57). The annexes cannot therefore serve as a basis for developing a plea set out in summary form in the application by putting forward complaints or arguments which are not contained in that application (see judgments of 30 January 2007 in France Télécom v Commission, T‑340/03, ECR, EU:T:2007:22, paragraph 167 and the case-law cited, and of 29 March 2012 in Telefónica and Telefónica de España v Commission, T‑336/07, ECR, EU:T:2012:172, paragraphs 59 and 60 and the case-law cited). 90 Consequently, the third plea in law must be rejected, and the action must therefore be dismissed in its entirety. Costs 91 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Mr Al-Faqih, Mr Nasuf and Mr Abdrabbah have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission. 92 Under Article 137 of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court. 93 However, under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. The United Kingdom of Great Britain and Northern Ireland and the Council shall thus bear their own costs. On those grounds, THE GENERAL COURT (Seventh Chamber), hereby: 1) Dismisses the action; 2) Orders Mr Al-Bashir Mohammed Al-Faqih, Mr Ghunia Abdrabbah and Mr Taher Nasuf to bear their own costs and to pay those incurred by the European Commission; 3) Orders the United Kingdom of Great Britain and Northern Ireland and the Council of the European Union to bear their own costs. Van der Woude Wiszniewska-Białecka Ulloa Rubio Delivered in open court in Luxembourg on 28 October 2015. [Signatures] * Language of the case: English.