Order — ECLI:EU:T:2009:340
Date: 2009-09-17
Language of the case: English
Court formation: Seventh Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: External relations;Common foreign and security policy
Concepts: Third-party proceedings
Procedure: Action for annulment;Third-party proceedings

summary of the main points which justify the keeping of [the PMOI] on the EU list’, drawn up by the said authorities for the attention of certain Member States delegations. According to the abovementioned letter from the French Ministry of Foreign and European Affairs, the passage in question ‘contained information of a security nature with implications for national defence which is therefore, under Article 413-9 of the Penal Code, subject to protective measures to restrict its circulation’, so that ‘the Ministry is unable to authorise its communication to the CFI’. 72 As regards the Council’s contention that it is bound by the French authorities’ claim for confidentiality, this does not explain why the production of the relevant information or material in the file to the Court would violate the principle of confidentiality, whereas their production to the members of the Council, and thus to the governments of the 26 other Member States, did not. 73 In any case, the Court considers that the Council is not entitled to base its funds-freezing decision on information or material in the file communicated by a Member State, if the said Member State is not willing to authorise its communication to the Community judicature whose task is to review the lawfulness of that decision. 74 It is to be borne in mind that in the OMPI judgment (paragraph 154), the Court has already held that the judicial review of the lawfulness of a decision to freeze funds extends to the assessment of the facts and circumstances relied on as justifying it, and to the evidence and information on which that assessment is based, as the Council expressly recognised in its written pleadings in the case giving rise to the judgment in Case T‑306/01 Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II‑3533, annulled on appeal in joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008], not yet reported. The Court must also ensure that the right to a fair hearing is observed and that the requirement of a statement of reasons is satisfied and also, where applicable, that the overriding considerations relied on exceptionally by the Council in order to justify disregarding those rights, are well founded. 75 In the current context, that review is all the more essential because it constitutes the only safeguard ensuring that a fair balance is struck between the need to combat international terrorism and the protection of fundamental rights. Since the restrictions imposed by the Council on the rights of the parties concerned to a fair hearing must be offset by a strict judicial review which is independent and impartial (see, to that effect, Case C‑341/04 Eurofood IFSC [2006] ECR I‑3813, paragraph 66), the Community courts must be able to review the lawfulness and merits of the measures to freeze funds without its being possible to raise objections that the evidence and information used by the Council is secret or confidential (OMPI judgment, paragraph 155). 76 In the present case, the refusal by the Council and the French authorities to communicate, even to the Court alone, the information contained in point 3 a) of the last of the three documents referred to at paragraph 58 above has the consequence that the Court is unable to review the lawfulness of the contested decision. 77 It follows that, in the circumstances of the case, as described above, the production of only the information contained in the Council’s answers to the Court order of 26 September 2008 and in their annexes does not enable either the applicant or the Court to verify that the contested decision was adopted in compliance with Article 1(4) of Common Position 2001/931 and of Article 2(3) of Regulation No 2580/2001 and is not vitiated by a manifest error of assessment. 78 In such circumstances, it must be concluded, first, that it has not been established that the contested decision was adopted in compliance with the provisions of Article 1(4) of Common Position 2001/931 and of Article 2(3) of Regulation No 2580/2001 and, second, that the very circumstances of its adoption infringe the applicant’s right to effective judicial protection. 79 It follows from the foregoing that the second and third pleas in law are founded. Costs 80 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 applicant. 81 Under the first subparagraph of Article 87(4) of the Rules of Procedure, Member States and institutions intervening in the proceedings are to bear their own costs. On those grounds, THE COURT OF FIRST INSTANCE (Seventh Chamber) hereby: 1. Annuls Council Decision 2008/583/EC of 15 July 2008 implementing Article 2(3) of Regulation No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2007/868/EC, in so far as it concerns the People’s Mojahedin Organization of Iran. 2. Orders the Council to bear, in addition to its own costs, the costs of the People’s Mojahedin Organization of Iran. 3. Orders the French Republic and the Commission to pay their own costs. Forwood Šváby Truchot Delivered in open court in Luxembourg on 4 December 2008. Signatures * Language of the case: English.