Judgment;Abstract — ECLI:EU:T:2021:206
Date: 2021-04-21
Language of the case: English
Court formation: Fifth Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - successful

summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119). 102 It is for the Courts of the European Union, in order to carry out that examination, to request the competent EU authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination (see judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 120 and the case-law cited). By contrast, it is for that competent EU authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded. For that purpose, it is necessary that the information or evidence produced should support the reasons relied on against the person concerned (judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 121 and 122). 103 It is in the light of those principles that the Court must establish whether the retention of the applicant’s name on the lists at issue has a sufficiently solid factual basis. 104 In the present case, first of all, it should be noted that the considerations put forward by the applicant to refute the allegation that she travelled in violation of the ban imposed by the Security Council and the Sanctions Committee are irrelevant. The Council no longer relied on the information contained in its letter of 18 December 2014 (see paragraph 11 above) in order to adopt the contested acts, and that reason for listing is no longer mentioned among those included in the lists at issue. 105 Next, it should be noted that the contested acts do not refer to any justification for maintaining the applicant’s name on the lists at issue in March 2017 and March 2020 other than that which had been put forward for the entry of her name on the lists annexed to the 2011 acts and the application of paragraphs 15 and 17 of Resolution 1970 (2011). As regards the reference to the Interpol notice, as pointed out in paragraph 96 above, the Council stated and confirmed at the hearing that it did not rely on the information relating to the investigation that was the subject of that notice. 106 It is true that the reasons put forward by the Council for the entry of the applicant’s name on the lists at issue, namely being the ‘daughter of Muammar Qadhafi’ and the ‘closeness of [her] association with [his] regime’, were not challenged in good time before the Courts of the European Union. 107 However, even though the Council was entitled to refer to the fact that the applicant was one of the persons covered by Resolution 1970 (2011) and to the statement of reasons set out in that resolution, it is clear from the case-law recalled in paragraphs 101 and 102 above that the Council is not relieved of its obligation to establish that the retention of the applicant’s name on the lists at issue had a sufficiently solid factual basis. 108 It should be borne in mind in that regard that the 2011 acts had been adopted ‘against persons and entities involved in serious human rights abuses against persons in Libya, including by being involved in attacks, in violation of international law, on civilian populations and facilities’, as stated in recital 3 of Decision 2011/137. Decision 2015/1333 and Regulation 2016/44 were adopted with the aim of consolidating into new legal instruments the restrictive measures imposed by the 2011 acts, as amended and implemented by several subsequent acts, ‘in view of the specific threat to international peace and security in the region posed by the situation in Libya’ (see recital 4 of Regulation 2016/44). 109 Notwithstanding the Council’s explanations recalled in paragraph 97 above, the information, ‘listed pursuant to paragraphs 15 and 17 of Resolution 1970 (2011) (Travel Ban, Asset Freeze)’, does not make it possible to understand the individual, specific and concrete reasons why the applicant’s name was maintained on the lists at issue on 21 March 2017 and 5 March 2020. 110 It should be noted in that regard that the Council merely refers to the information communicated to the applicant in the letter of 4 May 2015 (see paragraph 13 above), in particular the public statements she reportedly made in 2011 and 2013, without explaining why that information may have evidenced the risk which the applicant posed in 2017 and 2020, that is to say, at the time when the contested acts were adopted, to international peace and security in the region. 111 It should be borne in mind in that regard that, in paragraphs 69 and 73 of the judgment of 28 March 2017, El-Qaddafi v Council (T‑681/14, not published, EU:T:2017:227), the Court noted that the information communicated to the applicant in the letter of 4 May 2015 (see paragraph 13 above) was not among the reasons on the basis of which the 2014 acts had been adopted, that that information had been brought to the Council’s attention after the date on which those acts were adopted and that the disputed grounds manifestly did not include any information from which the applicant would have been able to infer – even on a broad interpretation of those grounds – what her individual, specific and concrete role was in the events that were taking place in Libya. 112 It is true that the force of res judicata in respect of the judgment of 28 March 2017, El-Qaddafi v Council (T‑681/14, not published, EU:T:2017:227), on which the applicant relies, cannot be invoked in the present case. First, as the Council argues, the 2017 acts were adopted before that judgment was delivered; second, the subject matter of, and cause of action in, the present proceedings are not the same as those of the action that gave rise to that judgment; and, third, the principle of the force of res judicata extends only to the matters of fact and law actually or necessarily settled by a judicial decision (see, to that effect, judgment of 29 November 2018, National Iranian Tanker Company v Council, C‑600/16 P, EU:C:2018:966, paragraph 43 and the case-law cited). The reasons underpinning the retention of the applicant’s name on the lists at issue do not constitute matters of fact and law actually or necessarily settled by the judgment of 28 March 2017, El-Qaddafi v Council (T‑681/14, not published, EU:T:2017:227), concerning the annulment of the 2014 acts. 113 It cannot, however, be inferred from that finding that the Council was not required to state the reasons why the information that had been brought to its attention before the date on which the contested acts were adopted, as communicated to the applicant in the letter of 4 May 2015, would still have been up to date in 2017 and 2020, so as to justify maintaining her name on the lists at issue. 114 The alleged public statements of the applicant to which reference is made in the letter of 4 May 2015 were reportedly made in 2011, in the immediate aftermath of reports concerning the deaths of Mr Qadhafi and Mr Mutassim Qadhafi, and in 2013. Consequently, several years have elapsed since those statements were reported in the press and brought to the attention of the Council, yet the Council does not give the slightest indication as to why the content of those statements might have shown that the applicant still represented a threat subject to sanctions within the framework of the objectives of Resolution 1970 (2011), notwithstanding the intervening changes in relation to her individual situation. 115 It should be observed in that regard that, since the 2011 listing measures and the subsequent listing measures, namely Decision 2015/1333 and Regulation 2016/44, the applicant has ceased to reside in Libya and the file does not mention any participation on her part in Libyan political life or statements other than those attributed to her in 2011 and 2013. Despite those changes in the applicant’s individual situation, the Council does not explain why she represented a threat to international peace and security in the region in 2017 and 2020, when the contested acts were adopted. 116 In the light of all the foregoing considerations, the applicant’s criticisms that the contested acts have no factual basis that would justify the retention of her name on the lists at issue are well founded. 117 The second part of the third plea in law must therefore be upheld and, consequently, the contested acts must be annulled to the extent that they concern the applicant, without it being necessary to examine the action in so far as it is based on Article 265 TFEU or the other pleas in law and arguments raised by the applicant in support of her application for annulment of those acts. Whether the effects of the implementing decision should be maintained 118 Following its observations in relation to the statement of modification, the Council asks the Court, in the alternative, in the event that Implementing Regulation 2020/371 is annulled in part, to declare, for reasons of legal certainty, that the effects of Implementing Decision 2020/374 be maintained until the annulment in part of Implementing Regulation 2020/371 takes effect. 119 At the hearing, the Council stated that Implementing Decision 2017/497 was still in force, as it was not replaced by Implementing Decision 2020/374, since the latter had merely updated the information relating to the applicant’s passports and her national identification number, which had not affected the reason for the applicant’s retention on the relevant list. However, in the event that the Court should find that Implementing Decision 2020/374 replaced Implementing Decision 2017/497, the Council maintained its alternative claim (see the third indent of paragraph 39 above). 120 It must be held that Implementing Decision 2017/497 produced effects for the applicant only until 6 March 2020, the date of publication of Implementing Decision 2020/374, which updated the administrative information relating to the applicant without, however, amending the grounds for her listing. Consequently, the Council’s alternative claim that the effects should be maintained can relate only to that second decision. 121 Under the first paragraph of Article 60 of the Statute of the Court of Justice of the European Union, an appeal is not to have suspensory effect. The second paragraph of that article provides, however, that, 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 period for bringing an appeal or, if an appeal has been brought within that period, as from the date of its dismissal. 122 In the present case, Implementing Regulation 2020/371 has the nature of a regulation, since it provides that it is to be binding in its entirety and directly applicable in all Member States, which corresponds to the effects of a regulation as provided for in Article 288 TFEU (see, to that effect, judgment of 21 April 2016, Council v Bank Saderat Iran, C‑200/13 P, EU:C:2016:284, paragraph 121). 123 The second paragraph of Article 60 of the Statute of the Court of Justice of the European Union is therefore applicable in the present case (see, by analogy, judgment of 21 April 2016, Council v Bank Saderat Iran, C‑200/13 P, EU:C:2016:284, paragraph 122). 124 As regards the temporal effects of the annulment of Implementing Decision 2020/374, it must be recalled that, under the second paragraph of Article 264 TFEU, the Court may, if it considers this necessary, state which effects of the act which it has declared void are to be considered definitive. 125 In the present case, a difference between the date when the annulment of Implementing Regulation 2020/371 takes effect and that of Implementing Decision 2020/374 would be liable seriously to jeopardise legal certainty, since both acts impose identical measures on the applicant (see, by analogy, judgment of 21 February 2018, Klyuyev v Council, T‑731/15, EU:T:2018:90, paragraph 263). The effects of Implementing Decision 2020/374 must therefore be maintained as regards the applicant until the annulment of Implementing Regulation 2020/371 takes effect. Costs 126 Under Article 134(1) 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. On those grounds, THE GENERAL COURT (Fifth Chamber) hereby: 1. Annuls Council Implementing Decision (CFSP) 2017/497 of 21 March 2017 implementing Decision (CFSP) 2015/1333 concerning restrictive measures in view of the situation in Libya, and Council Implementing Decision (CFSP) 2020/374 of 5 March 2020 implementing Decision (CFSP) 2015/1333 concerning restrictive measures in view of the situation in Libya, in so far as they maintain the name of Ms Aisha Muammer Mohamed El-Qaddafi on the lists in Annexes I and III to Council Decision (CFSP) 2015/1333 of 31 July 2015 concerning restrictive measures in view of the situation in Libya, and repealing Decision 2011/137/CFSP; 2. Annuls Council Implementing Regulation (EU) 2017/489 of 21 March 2017 implementing Article 21(5) of Regulation (EU) 2016/44 concerning restrictive measures in view of the situation in Libya, and Council Implementing Regulation (EU) 2020/371 of 5 March 2020 implementing Article 21(5) of Regulation (EU) 2016/44 concerning restrictive measures in view of the situation in Libya, in so far as they maintain the name of Ms Aisha Muammer Mohamed El-Qaddafi on the list in Annex II to Council Regulation (EU) 2016/44 of 18 January 2016 concerning restrictive measures in view of the situation in Libya and repealing Regulation (EU) No 204/2011; 3. Orders the effects of Article 1 of Implementing Decision 2020/374 to be maintained in respect of Ms Aisha Muammer Mohamed El-Qaddafi until the date of expiry of the period for bringing an appeal, as provided for in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union, or, if an appeal is brought within that period, until the date of any dismissal of that appeal; 4. Orders the Council of the European Union to pay the costs. Spielmann Öberg Spineanu-Matei Delivered in open court in Luxembourg on 21 April 2021. E. Coulon S. Papasavvas Registrar President * Language of the case: English.