62009CJ0550_EN
Parties
Grounds
Operative part
Parties
In Case C‑550/09,
REFERENCE for a preliminary ruling under Article 267 TFEU from the Oberlandesgericht Düsseldorf (Germany), made by decision of 21 December 2009, received at the Court on 29 December 2009, in the criminal proceedings against
E,
F,
THE COURT (Grand Chamber),
composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues, K. Lenaerts (Rapporteur), J.-C. Bonichot, P. Lindh and C. Toader, Presidents of Chambers, E. Juhász, G. Arestis, A. Borg Barthet, M. Ilešič, T. von Danwitz and A. Arabadjiev, Judges,
Advocate General: P. Mengozzi,
Registrar: R. Şereş, Administrator,
having regard to the decision of the President of the Court of 1 March 2010 to apply an accelerated procedure in accordance with Article 23a of the Statute of the Court of Justice and the first paragraph of Article 104a of the Rules of Procedure,
having regard to the written procedure and further to the hearing on 12 May 2010,
after considering the observations submitted on behalf of:
– the Generalbundesanwalt beim Bundesgerichtshof, by V. Homann and K. Lohse, acting as Agents,
– E, by F. Hess and A. Nagler, Rechtsanwälte,
– F, by B. Eder and A. Pues, Rechtsanwältinnen,
– the French Government, by E. Belliard, G. de Bergues and L. Butel, acting as Agents,
– the Council of the European Union, by Z. Kupcová, E. Finnegan and R. Szostak, acting as Agents,
– the European Commission, by T. Scharf and M. Konstantinidis, acting as Agents,
after hearing the Advocate General,
gives the following
Judgment
Grounds
1. This reference for a preliminary ruling concerns (i) the legality of the inclusion of the organisation known as Devrimci Halk Kurtulus Partisi-Cephesi (DHKP‑C) on the list of persons, groups and entities to which Council Regulation (EC) No 2580/2001 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) applies and (ii) the interpretation of Articles 2 and 3 of that regulation.
2. The reference was made in criminal proceedings brought against E and F (‘the defendants’), currently being held in pre-trial detention in Germany, for membership of a foreign terrorist organisation and infringement of Articles 2 and 3 of Regulation No 2580/2001.
Legal context
International law
3. Following the terrorist attacks which took place on 11 September 2001 in New York, Washington and Pennsylvania, the United Nations Security Council adopted Resolution 1373 (2001) on 28 September 2001.
4. The preamble to that resolution reaffirms ‘the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts’. It also recognises the need for States ‘to complement international cooperation by taking additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism’.
5. Under Point 1 of the resolution, the United Nations Security Council:
‘ Decides that all States shall:
(a) Prevent and suppress the financing of terrorist acts;
(b) Criminalise the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts;
…
(d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons.’
Common Positions 2001/931/CFSP and 2002/340/CFSP
6. On 27 December 2001, the Council of the European Union adopted Common Position 2001/931/CFSP on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93).
7. Recitals 1, 2 and 5 in the preamble to Common Position 2001/931 state:
‘(1) At its extraordinary meeting on 21 September 2001, the European Council declared that terrorism is a real challenge to the world and to Europe and that the fight against terrorism will be a priority objective of the European Union.
(2) On 28 September 2001, the United Nations Security Council adopted Resolution 1373 (2001) laying out wide-ranging strategies to combat terrorism and in particular the fight against the financing of terrorism.
…
(5) The European Union should take additional measures in order to implement UNSC Resolution 1373 (2001).’
8. Article 1 of Common Position 2001/931 provides, inter alia, as follows:
‘1. This Common Position applies in accordance with the provisions of the following articles to persons, groups and entities involved in terrorist acts and listed in the Annex.
2. For the purposes of this Common Position, “persons, groups and entities involved in terrorist acts” shall mean,
– persons who commit, or attempt to commit, terrorist acts or who participate in, or facilitate, the commission of terrorist acts,
– groups and entities owned or controlled directly or indirectly by such persons; and persons, groups and entities acting on behalf of, or under the direction of, such persons, groups and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons, groups and entities.
3. For the purposes of this Common Position, “terrorist act” shall mean one of the following intentional acts, which, given its nature or its context, may seriously damage a country or an international organisation, as defined as an offence under national law, where committed with the aim of:
…
(iii)	seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation:
…
k) participating in the activities of a terrorist group, including by supplying information or material resources, or by funding its activities in any way, with knowledge of the fact that such participation will contribute to the criminal activities of the group.
…
4. The list in the Annex shall be drawn up on the basis of precise information or material in the relevant file which indicates that a decision has been taken by a competent authority in respect of the persons, groups and entities concerned, irrespective of whether it concerns the instigation of investigations or prosecution for a terrorist act, an attempt to perpetrate, participate in or facilitate such an act based on serious and credible evidence or clues, or condemnation for such deeds. …
For the purposes of this paragraph “competent authority” shall mean a judicial authority, or, where judicial authorities have no competence in the area covered by this paragraph, an equivalent competent authority in that area.
…
6. The names of persons and entities on the list in the Annex shall be reviewed at regular intervals and at least once every six months to ensure that there are grounds for keeping them on the list.’
9. Under Article 3 of Common Position 2001/931, ‘[t]he European Community, acting within the limits of the powers conferred on it by the Treaty establishing the European Community, shall ensure that funds, financial assets or economic resources or financial or other related services will not be made available, directly or indirectly, for the benefit of persons, groups and entities listed in the Annex.’
10. The Annex to Common Position 2001/931 contains a list entitled ‘First list of persons, groups and entities referred to in Article 1 ...’. DHKP‑C’s name does not appear on that list.
11. That annex was replaced by the Annex to Council Common Position 2002/340/CFSP of 2 May 2002 updating Common Position 2001/931 (OJ 2002 L 116, p. 75).
12. In the Annex to Common Position 2002/340, ‘Revolutionary People’s Liberation Army/Front/Party (DHKP/C), (a.k.a. Devrimci Sol (Revolutionary Left), Dev Sol)’ appears as entry no 19 on the list of ‘Groups and Entities’ set out in Section 2. That organisation was maintained on the list referred to in Article 1(6) of Common Position 2001/931 by subsequent Council common positions and, most recently, by Council Decision 2009/1004/CFSP of 22 December 2009 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931 (OJ 2009 L 346, p. 58).
Regulation No 2580/2001
13. Recitals 2 to 5 in the preamble to Regulation No 2580/2001 state:
‘(2) The European Council declared that combating the funding of terrorism is a decisive aspect of the fight against terrorism and called upon the Council to take the necessary measures to combat any form of financing for terrorist activities.
(3) In its Resolution 1373 (2001), the United Nations Security Council decided on 28 September 2001 that all States should implement a freezing of funds and other financial assets or economic resources as against persons who commit, or attempt to commit, terrorist acts or who participate in or facilitate the commission of such acts.
(4) In addition, the Security Council decided that measures should be taken to prohibit funds and other financial assets or economic resources from being made available for the benefit of such persons, and to prohibit financial or other related services from being rendered for the benefit of such persons.
(5) Action by the Community is necessary in order to implement the CFSP aspects of Common Position 2001/931 ….’
14. Article 1 of Regulation No 2580/2001 provides that, ‘[f]or the purpose of this Regulation, the following definitions shall apply:
(1) “Funds, other financial assets and economic resources” means assets of every kind, whether tangible or intangible, movable or immovable, however acquired …
…
(4) For the purposes of this Regulation, the definition of “terrorist act” shall be the one contained in Article 1(3) of Common Position 2001/931...;
…’
15. Article 2 of Regulation No 2580/2001 provides:
‘1. Except as permitted under Articles 5 and 6:
(a) all funds, other financial assets and economic resources belonging to, or owned or held by, a natural or legal person, group or entity included in the list referred to in paragraph 3 shall be frozen;
(b) no funds, other financial assets and economic resources shall be made available, directly or indirectly, to, or for the benefit of, a natural or legal person, group or entity included in the list referred to in paragraph 3;
…
3. The Council, acting by unanimity, shall establish, review and amend the list of persons, groups and entities to which this Regulation applies, in accordance with the provisions laid down in Article 1(4), (5) and (6) of Common Position 2001/931 …’
16. Under Article 3(1) of Regulation No 2580/2001, ‘[t]he participation, knowingly and intentionally, in activities, the object or effect of which is, directly or indirectly, to circumvent Article 2 shall be prohibited’.
17. Article 9 of Regulation No 2580/2001 provides that ‘[e]ach Member State shall determine the sanctions to be imposed where the provisions of this Regulation are infringed’.
The provisions relating to the inclusion of DHKP-C on the list provided for in Article 2(3) of Regulation No 2580/2001
18. Council Decision 2001/927/EC of 27 December 2001 establishing the list provided for in Article 2(3) of Regulation No 2580/2001 (OJ 2001 L 344, p. 83) adopted a first list of persons, groups and entities to which the regulation applies. DHKP‑C does not appear on that first list.
19. Article 1 of Council Decision 2002/334/EC of 2 May 2002 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2001/927 (OJ 2002 L 116, p. 33) updated for the first time the list of persons, groups and entities to which Regulation No 2580/2001 applies. On the updated list, the ‘Revolutionary People’s Liberation Army/Front/Party (DHKP/C), (a.k.a. Devrimci Sol (Revolutionary Left), Dev Sol)’ appears as entry no 10 of the ‘Groups and Entities’ set out in Section 2.
20. The inclusion of DHKP‑C on the list provided for in Article 2(3) of Regulation No 2580/2001 was maintained by the following subsequent provisions:
– entry no 18 in Section 2 of the list set out in Article 1 of Council Decision 2002/460/EC of 17 June 2002 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2002/334 (OJ 2002 L 160, p. 26);
– entry no 19 in Section 2 of the list set out in Article 1 of Council Decision 2002/848/EC of 28 October 2002 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2002/460 (OJ 2002 L 295, p. 12);
– entry no 20 in Section 2 of the list set out in Article 1 of Council Decision 2002/974/EC of 12 December 2002 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2002/848 (OJ 2002 L 337, p. 85);
– entry no 20 in Section 2 of the list set out in Article 1 of Council Decision 2003/480/EC of 27 June 2003 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2002/974 (OJ 2003 L 160, p. 81);
– entry no 20 in Section 2 of the list set out in Article 1 of Council Decision 2003/646/EC of 12 September 2003 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2003/480 (OJ 2003 L 229, p. 22);
– entry no 21 in Section 2 of the list set out in Article 1 of Council Decision 2003/902/EC of 22 December 2003 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2003/646 (OJ 2003 L 340, p. 63);
– entry no 22 in Section 2 of the list set out in Article 1 of Council Decision 2004/306/EC of 2 April 2004 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2003/902 (OJ 2004 L 99, p. 28);
– entry no 23 in Section 2 of the list set out in Article 1 of Council Decision 2005/221/CFSP of 14 March 2005 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2004/306 (OJ 2005 L 69, p. 64);
– entry no 22 in Section 2 of the list set out in Article 1 of Council Decision 2005/428/CFSP of 6 June 2005 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2005/221 (OJ 2005 L 144, p. 59);
– entry no 22 in Section 2 of the list set out in Article 1 of Council Decision 2005/722/EC of 17 October 2005 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2005/428 (OJ 2005 L 272, p. 15, and corrigendum, OJ 2005 L 276, p. 70);
– entry no 23 in Section 2 of the list set out in Article 1 of Council Decision 2005/848/EC of 29 November 2005 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2005/722 (OJ 2005 L 314, p. 46);
– entry no 24 in Section 2 of the list set out in Article 1 of Council Decision 2005/930/EC of 21 December 2005 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2005/848 (OJ 2005 L 340, p. 64); and
– entry no 25 in Section 2 of the list set out in Article 1 of Council Decision 2006/379/EC of 29 May 2006 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2005/930 (OJ 2006 L 144, p. 21).
21. Recital 3 in the preamble to Council Decision 2007/445/EC of 28 June 2007 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decisions 2006/379 and 2006/1008 (OJ 2007 L 169, p. 58) states that the Council has provided all the persons, groups and entities for which this was practically possible with statements of reasons explaining the reasons why they were listed, inter alia, in Decision 2006/379.
22. As is apparent from recitals 4, 5 and 6 in the preamble to Decision 2007/445, the Council informed those persons, groups and entities – by a notice published in the Official Journal of the European Union
of 25 April 2007 (OJ 2007 C 90, p. 1) – of its intention to maintain them on the list provided for in Article 2(3) of Regulation No 2580/2001 and of the fact that they could request the Council’s statement of reasons for including them on the list where this had not already been communicated to them. Following a complete review of that list in the light of the observations and documents submitted to it, the Council concluded that the persons, groups and entities listed in the Annex to Decision 2007/445 had been involved in terrorist acts within the meaning of Article 1(2) and (3) of Common Position 2001/931; that a decision had been taken with respect to them by a competent authority within the meaning of Article 1(4) of that Common Position; and that they should continue to be subject to the specific restrictive measures provided for in Regulation No 2580/2001.
23. Under Article 3 of Decision 2007/445, ‘[t]his Decision shall take effect on the day of its publication’. Decision 2007/445 was published on 29 June 2007.
24. DHKP-C is listed as entry no 26 in Section 2, entitled ‘Groups and Entities’, of the list set out in the Annex to Decision 2007/445, which – pursuant to Articles 1 and 2 of that decision – replaces, inter alia, the list set out in Decision 2006/379.
25. DHKP-C was maintained on the list provided for in Article 2(3) of Regulation No 2580/2001 by subsequent Council decisions and, in particular, by Council Decision 2007/868/EC of 20 December 2007 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2007/445 (OJ 2007 L 340, p. 100), and by Council Decision 2008/583/EC of 15 July 2008 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2007/868 (OJ 2008 L 188, p. 21).
National law
26. Infringements of legislative acts of the European Union, such as Regulation No 2580/2001, are punishable by criminal penalties pursuant to Paragraph 34(4) of the German Law on Foreign Trade (Außenwirtschaftsgesetz; ‘the AWG’), both in the version of 11 December 1996 (BGBl. 1996 I, p. 1850) and in the version of 26 June 2006 (BGBl. 2006 I, p. 1386).
The facts giving rise to the main proceedings and the questions referred for a preliminary ruling
27. The criminal proceedings against the defendants are based on an indictment drawn up by the Generalbundesanwalt beim Bundesgerichtshof (‘the Generalbundesanwalt’) on 6 October 2009, in which they are accused of being members of DHKP‑C between 30 August 2002 and 5 November 2008, the date of their arrest, the aim of that organisation being, according to the indictment, to overthrow the Turkish political order by force. That is the basis on which the defendants were placed in pre-trial detention.
28. According to the indictment, throughout the duration of their membership of DHKP‑C, the defendants – who are charged with running geographical sub-units (‘Bölge’) of DHKP‑C in Germany – organised, as part of their main task, which was to provide the DHKP‑C with funds, annual campaigns to collect donations for its benefit and transferred the funds collected to the organisation’s highest executive bodies. It is also alleged that the defendants played a crucial role in the organisation of events and the sale of publications with a view to raising funds for DHKP‑C and transferred those funds to that organisation. According to the indictment, they were not unaware that the funds thus raised were intended, at least in part, to finance DHKP‑C’s terrorist activities.
29. During the period covered by the indictment, one of the defendants collected and transferred to DHKP‑C at least EUR 215 809 and the other at least EUR 105 051.
30. Since it had doubts concerning the legality of the inclusion of DHKP‑C on the list provided for in Article 2(3) of Regulation No 2580/2001 and the interpretation of the regulation, the Oberlandesgericht Düsseldorf decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Taking account, if appropriate, of the amended procedure resulting from [Decision 2007/445], is the listing on the basis of Article 2 of [Regulation No 2580/2001] of an organisation which has not brought proceedings contesting the decisions concerning it to be regarded as effective (‘wirksam’) from the outset even if basic procedural guarantees were infringed in listing it?
(2) Are Articles 2 and 3 of [Regulation No 2580/2001] to be interpreted as meaning that funds, financial assets and economic resources are made available to a legal person, group or entity included in the list referred to in Article 2(3) of the regulation, that there is involvement in such provision or that there is participation in activities to circumvent Article 2 of the regulation even where the provider is, himself, a member of the legal person, group or entity?
(3) Are Articles 2 and 3 of [Regulation No 2580/2001] to be interpreted as meaning that funds, financial assets and economic resources are made available to a legal person, group or entity included in the list referred to in Article 2(3) of the regulation, that there is involvement in such provision or that there is participation in activities to circumvent Article 2 of the regulation even where the asset to be provided already is, if only in the broader sense, accessible to the legal person, group or entity?’
Procedure before the Court
31. The order for reference was notified on 1 February 2010 to the interested parties, who were accorded a period ending between 15 and 21 April 2010 to submit written observations. At the time of that notification, the national court and those parties were informed of the Court’s decision to give priority to the present reference for a preliminary ruling.
32. By separate document dated 5 February 2010 which was received at the Court Registry on 11 February 2010, the national court requested the Court to apply the present reference for a preliminary ruling under the accelerated procedure. In support of that request, the national court explained that, by order of 15 January 2010, it had opened the defendants’ criminal trial and fixed the date for the hearings for the period between 11 March 2010 and 31 August 2010. the national court expressed the view that, given the likely duration of the trial and the importance, for the case before it, of the questions referred, a ruling on the questions put to the Court is a matter of exceptional urgency.
33. By order of 1 March 2010, the President of the Court decided to apply an accelerated procedure to the present reference for a preliminary ruling.
Admissibility of the reference for a preliminary ruling
34. E challenges the admissibility of the reference for a preliminary ruling on grounds of the allegedly irregular composition of the chamber of the national court which made the reference to the Court.
35. In that regard, it should be pointed out that, provided that an order for reference emanates from a court or tribunal within the meaning of Article 267 TFEU, it is not, in principle, for the Court to determine whether the decision whereby the matter has been brought before it was taken in accordance with the rules of national law governing the organisation of the courts and their procedure.
36. In consequence, the reference for a preliminary ruling is admissible.
The questions referred
Question 1
37. By Question 1, the national court asks, in substance, whether the inclusion of DHKP‑C on the list provided for in Article 2(3) of Regulation No 2580/2001(‘the list’), which DHKP-C has not contested before the courts, must be regarded as having produced effects from the outset despite the fact that the entry was initially made in breach of basic procedural safeguards.
38. It is apparent from the information given in the order for reference that, among those safeguards, the national court is referring, in particular, to the duty under Article 296 TFEU to state reasons. Its doubts, in the light of the defendants’ objections, as to whether, given that duty, that listing was legal flow from judgments in which the General Court held that the inclusion of a number of persons, groups or entities on the list was illegal, chiefly because the Council had failed to state reasons for those various listings in the contested decisions and, accordingly, substantive review by the judicature of the European Union was impossible (Case T‑228/02 Organisation des Modjahedines du peuple d’Iran
v Council
[2006] ECR II-4665; judgments of 11 July 2007 in Case T-47/03 Sison
v Council
and Case T-327/03 Al-Aqsa
v Council ; and judgments of 3 April 2008 in Case T‑229/02 PKK
v Council
and Case T-253/04 Kongra-Gel and Others
v Council ).
39. Against that background, the national court is uncertain whether, notwithstanding the fact that DHKP‑C has not sought annulment of its inclusion on the list, the Council decisions must be held illegal for the same reasons in so far as they placed and subsequently maintained that organisation on the list.
40. The national court is also uncertain as to the effect of Decision 2007/445, given the assertion made in the indictment that the inclusion of DHKP‑C on the list had, in any event, been legitimated ex post facto
in view of the procedure which the Council followed for the purposes of adopting that decision, in the course of which the reasons for including DHKP‑C were stated.
41. Thus, Question 1 seeks an examination, in the light of the duty under Article 296 TFEU to state reasons, of the legality of the entry of DHKP‑C on the list and its maintenance on that list by operation of the provisions identified in paragraph 20 above, which, taken together, cover the period between 30 August 2002, the date on which the conduct alleged in the indictment began, and 28 June 2007, the day before the date on which Decision 2007/445 came into effect (‘the inclusion of DHKP-C on the list during the period prior to 29 June 2007’).
42. On the other hand, as is accepted by all the parties who submitted observations to the Court, with the exception of F, Question 1 does not concern the legality of the inclusion of DHKP-C on the list pursuant to Decision 2007/445 and the subsequent Council decisions referred to in paragraph 25 above. Nor – contrary to the position argued for by F – does Question 1 concern the legality of Regulation No 2580/2001.
43. At the outset, it should be emphasised that, by contrast with the case which gave rise to the judgment in Joined Cases C‑402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission
[2008] ECR I‑6351, which concerned a measure freezing the applicants’ assets, the provisions whose legality is under consideration in this reference for a preliminary ruling are relied upon in support of accusations relating to an infringement of Regulation No 2580/2001, which is punishable under the applicable national law by criminal penalties entailing custodial sentences.
44. Against that background, it should be noted that the European Union is based on the rule of law and the acts of its institutions are subject to review by the Court of their compatibility with EU law and, in particular, with the Treaty on the Functioning of the European Union and the general principles of law. The Treaty on the Functioning of the European Union has established a complete system of legal remedies and procedures designed to confer on the judicature of the European Union jurisdiction to review the legality of acts of the institutions of the European Union (see, to that effect, Case C-50/00 P Unión de Pequeños Agricultores
v Council
[2002] ECR I‑6677, paragraphs 38 and 40, and Kadi and Al Barakaat International Foundation
v Council and Commission, paragraph 281).
45. It follows that, in proceedings before the national courts, every party has the right to plead before the court hearing the case the illegality of the provisions contained in legislative acts of the European Union which serve as the basis for a decision or act of national law relied upon against him and to prompt that court, which does not have jurisdiction itself to make a finding of such illegality, to put that question to the Court by means of a reference for a preliminary ruling (see, to that effect, Cases C‑239/99 Nachi Europe
[2001] ECR I‑1197, paragraph 35, and Unión de Pequeños Agricultores
v Council, paragraph 40).
46. The recognition of that right presupposes, however, that the party in question had no right of direct action under Article 263 TFEU by which it could challenge provisions, the consequences of which it is suffering without having been able to seek their annulment (see, to that effect, Ca se C-188/92 TWD Textilwerke Deggendorf
[1994] ECR I‑833, paragraph 23, and Nachi Europe, paragraph 36).
47. Pursuant to Paragraph 34(4) of the AWG, in the case before the referring court, the inclusion of DHKP-C on the list during the period prior to 29 June 2007 serves, together with Regulation No 2580/2001, as the basis for the indictment of the defendants in respect of that period.
48. Accordingly, it is necessary to determine whether, if the defendants had brought an action for annulment of that listing, the admissibility of their action would have been beyond doubt (see, to that effect, Case C-343/07 Bavaria and Bavaria Italia
[2009] ECR I‑0000, paragraph 40).
49. In that regard, it should be pointed out that the defendants themselves were not placed on that list: the entry on the list relates only to DHKP‑C. Moreover, the order for reference does not give any information on the basis of which it could be established that the position occupied by the defendants within DHKP‑C would have conferred on them the power to represent that organisation in an action for annulment brought before the judicature of the European Union.
50. In addition, it cannot be held that the defendants were indisputably ‘directly and individually concerned’ by the listing at issue for the purposes of the fourth paragraph of Article 230 EC, which was applicable at the material time.
51. The reason for this is that, like Regulation No 2580/2001, that inclusion on the list is of general application. It serves, together with that regulation, to impose on an indeterminate number of persons an obligation to comply with specific restrictive measures against DHKP-C (see, by analogy, Kadi and Al Barakaat International Foundation
v Council and Commission, paragraphs 241 to 244).
52. It follows that, as the national court pointed out, the defendants – unlike DHKP‑C – did not have an indisputable right to bring an action under Article 230 EC for the annulment of that listing.
53. As to the assessment, in the light of the duty under Article 296 TFEU to state reasons, of the legality of the provisions identified in paragraph 20 above, it should be pointed out that that duty is applicable to a listing such as that at issue in the main proceedings. That point was not disputed, moreover, by any of the parties who intervened in the proceedings before the Court.
54. The purpose of that duty is, first, to enable the persons concerned to ascertain the reasons for the measure so that they can assess whether it is well founded and, secondly, to enable the competent court to exercise its power of review (see, to that effect, Joined Cases C‑346/03 and C‑529/03 Atzeni and Others
[2006] ECR I‑1875, paragraph 73, and C‑370/07 Commission
v Council
[2009] ECR I‑0000, paragraph 37).
55. In the present case, as the Council confirmed at the hearing, none of the provisions referred to in paragraph 20 above was accompanied by a statement of reasons relating to the legal conditions for the application to DHKP‑C of Regulation No 2580/2001, in particular, those relating to the existence of a decision taken by a competent authority within the meaning of Article 1(4) of Common Position 2001/931 or an explanation of the actual and specific reasons for which the Council considered that the inclusion of DHKP-C on the list was justified, or remained so.
56. The defendants were therefore denied the information necessary to enable them to verify whether the inclusion of DHKP‑C on the list during the period prior to 29 June 2007 – in particular, the accuracy and relevance of the evidence on which that listing was based – was well founded, despite the fact that it was one of the grounds of the indictment drawn up against them. At the hearing, the Council acknowledged that the right to know the evidence justifying such inclusion on the list extended to the defendants.
57. The lack of a statement of reasons which vitiates the listing is also liable to frustrate the attempts of the courts to carry out an adequate review of the substantive legality of that listing, particularly as regards the verification of the facts, and the evidence and information relied upon in support of the listing. As F stated at the hearing, the possibility of an adequate review by the courts is indispensable if a fair balance between the requirements of the fight against international terrorism, on the one hand, and the protection of fundamental liberties and rights, on the other, is to be ensured.
58. The Generalbundesanwalt argues nevertheless that, even if the inclusion of DHKP‑C on the list prior to 29 June 2007 was not done legally, it has, in any event, been legitimated ex post facto
by virtue of the procedure which was followed for the adoption of Decision 2007/445, in the course of which the reasons for that listing were provided.
59. However, even if it were to be supposed that, by adopting Decision 2007/445, the Council intended to remedy the lack of a statement of reasons for placing DHKP‑C on the list during the period prior to 29 June 2007, that decision cannot, in any circumstances, be relied upon, in conjunction with Paragraph 34(4) of the AWG, as a basis for a criminal conviction in respect of facts relating to that period, without infringing the principle of the non-retroactivity of provisions which may form the basis for a criminal conviction (see, by analogy, Case 63/83 Kirk
[1984] ECR 2689, paragraphs 21 and 22; Case C-331/88 Fedesa and Others
[1990] ECR I‑4023, paragraph 44; and Joined Cases C‑387/02, C‑391/02 and C‑403/02 Berlusconi and Others
[2005] ECR I‑3565, paragraphs 74 to 78).
60. If it were accepted that, for the purposes of the proceedings before the referring court, Decision 2007/445 could provide a statement of the reasons for the decisions identified in paragraph 20 above, which were illegal during the period prior to 29 June 2007, Decision 2007/445 would in reality form part of the basis for a criminal conviction in respect of acts committed during that period, notwithstanding the fact that, throughout that period, that decision did not exist.
61. In those circumstances, it is for the national court to decline to apply, in the proceedings before it, the provisions referred to in paragraph 20 above, which consequently cannot form any part of the basis for criminal proceedings against the defendants in respect of the period prior to 29 June 2007.
62. In view of the above, the answer to Question 1 is that, in respect of the period prior to 29 June 2007, the inclusion of DHKP-C on the list is illegal and, accordingly, can form no part of the basis for a criminal conviction linked to an alleged infringement of Regulation No 2580/2001.
Questions 2 and 3
63. By Questions 2 and 3, which should be considered together, the national court asks, in substance, whether Articles 2 and 3 of Regulation No 2580/2001 must be interpreted as applying to the transfer, to a legal person, group or entity which is on the list, by a member of that legal person, group or entity, of funds, other financial assets or economic resources collected or obtained from third persons.
64. In the light of the information provided in the order for reference, the point of those two questions is to ascertain whether acts such as those by which the defendants, in their capacity as members of DHKP‑C, transferred to that organisation – or, to be exact, to its highest executive bodies – the funds obtained from third persons through annual campaigns to collect donations, and through events and sales of publications, imply that those funds were made available for the benefit of that organisation within the meaning of Regulation No 2580/2001.
65. The first point to note in that regard is that, as the French Government commented, there is nothing in the wording of Articles 2 and 3 of Regulation No 2580/2001 to support the inference that those provisions do not apply to acts of that nature.
66. On the contrary, the prohibition laid down in Article 2(1)(b) of Regulation No 2580/2001 is framed in particularly broad terms (see, by analogy, Case C‑117/06 Möllendorf and Möllendorf-Niehuus
[2007] ECR I‑8361, paragraph 50).
67. The expression ‘made available’ has a wide meaning, encompassing all the acts necessary if a person, a group or an entity on the list is effectively to obtain full power of disposal in respect of the funds, other financial assets and economic resources concerned (see, by analogy, Möllendorf and Möllendorf-Niehuus, paragraph 51).
68. That meaning is independent of the existence or absence of a relationship between the perpetrator of the act of ‘making available’ and the beneficiary. As the Generalbundesanwalt maintained, and contrary to the position argued for by F, there is nothing in Regulation No 2580/2001 – in any of its various language versions – to suggest that the transfer of funds by a member of an organisation on the list to that same organisation is not covered by that meaning.
69. The notion of ‘funds, other financial assets and economic resources’ as used in Regulation No 2580/2001 also takes on, by virtue of the related definition given in Article 1(1) of that regulation, a wide meaning which covers assets of every kind, however acquired. It is not important, in that regard, whether own assets or assets which have been collected or obtained from third persons are concerned.
70. It should be added that, for the purposes of interpreting Regulation No 2580/2001, it is necessary to take account of the wording and purpose of Common Position 2001/931, which that regulation – according to recital 5 in the preamble thereto – is intended to implement.
71. The prohibition laid down in Article 3 of Common Position 2001/931 is framed in terms as general as those used in Article 2(1)(b) of Regulation No 2580/2001. Moreover, Article 1(3) of Common Position 2001/931, to which Article 1(4) of that regulation refers, attributes a wide meaning to the term ‘terrorist act’, which encompasses, under Article 1(3)(iii)(k), ‘funding ... in any way’ the activities of a terrorist group.
72. As the European Commission has argued, the interpretation of Regulation No 2580/2001 also implies that account must be taken of the wording and purpose of Resolution 1373 (2001), to which the third recital in the preamble to that regulation refers (see, by analogy, Möllendorf and Möllendorf-Niehuus, paragraph 54, and Case C‑340/08 M and Others
[2010] ECR I‑0000, paragraph 45).
73. However, Point 1(d) of Resolution 1373 (2001) lays down a general prohibition on, amongst other things, making funds available for the benefit of persons or entities which commit or attempt to commit acts of terrorism. Point 1(b) of that resolution provides, in addition, that States are to ‘[c]riminalise the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts’.
74. The broad and unambiguous wording of the provisions referred to in paragraphs 71 and 73 above confirms that Article 2(1)(b) of Regulation No 2580/2001 encompasses acts such as those referred to in Questions 2 and 3.
75. As the Commission has argued, the foregoing analysis is not called into question by the defendants’ contention that, once in their possession, the funds at issue were already accessible, indirectly, to DHKP‑C and that, as a consequence, their subsequent transfer to the executive bodies of that organisation did not constitute making them available for the benefit of the organisation, within the meaning of Regulation No 2580/2001.
76. Particularly in view of the structure of DHKP‑C, which – as the Generalbundesanwalt explained at the hearing – is composed of central management bodies and four main units, which are in turn composed of national, regional and local sub-units, the fact that members of that organisation hold funds received from third persons is not enough to support a finding that the executive bodies which embody the organisation, and specified as such on the list, have the funds available themselves. In the present case, the transfer of those funds to those executive bodies was necessary if DHKP‑C was in fact to obtain full power of disposal in respect of those funds – which, up till then, it did not have – for the attainment of its objectives.
77. As for the defendants’ contention that it has not been established that the funds which they transferred were actually used by DHKP‑C to finance terrorist activities, it should be pointed out that both the definition in Article 1(1) of Regulation No 2580/2001 and the terms of Article 2(1)(b) of that regulation render it irrelevant. Funds made available for the benefit of an organisation on the list carry with them the danger that they may be diverted in order to support such activities (see, by analogy, M and Others, paragraph 57). Such ‘making available’ is thus covered by the prohibition laid down in Article 2(1)(b) and is punishable by the criminal penalties provided for under the applicable national law, regardless of whether it has been established that the funds were actually used by the organisation at issue for activities of that nature.
78. In its observations lodged before the Court, F further maintains that the fact that, unlike Resolution 1373 (2001), neither Common Position 2001/931 nor Regulation No 2580/2001 covers the collection of funds for the benefit of persons, groups or entities on the list reflects an intention on the part of the European Union legislature to exclude that type of act from the scope of Regulation No 2580/2001.
79. However, as is clear from the order for reference and as the Generalbundesanwalt confirmed at the hearing, the indictment does not concern the activity of collecting funds as such, but rather the transfer of the proceeds of that activity to the organisation of which the defendants are members.
80. In the light of the above, the answer to Questions 2 and 3 is that Article 2(1)(b) of Regulation No 2580/2001 must be interpreted as covering the transfer to a legal person, group or entity on the list, by a member of that legal person, group or entity, of funds and other financial assets or economic resources collected or obtained from third persons.
Costs
81. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Grand Chamber) hereby rules:
1. In respect of the period prior to 29 June 2007, the inclusion of Devrimci Halk Kurtulus Partisi-Cephesi (DHKP-C) on the list provided for in Article 2(3) of Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism is illegal and, accordingly, can form no part of the basis for a criminal conviction linked to an alleged infringement of that regulation.
2. Article 2(1)(b) of Regulation No 2580/2001 must be interpreted as covering the transfer to a legal person, group or entity on the list provided for in Article 2(3) of that regulation, by a member of that legal person, group or entity, of funds and other financial assets or economic resources collected or obtained from third persons.