Case C‑158/14
A and Others
v
Minister van Buitenlandse Zaken
(Request for a preliminary ruling from the Raad van State (Netherlands))
(Reference for a preliminary ruling — Common Foreign and Security Policy (CFSP) — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Common Position 2001/931/CFSP — Framework Decision 2002/475/JHA — Regulation (EC) No 2580/2001 — Article 2(3) — Inclusion of the ‘Liberation Tigers of Tamil Eelam (LTTE)’ on the list of persons, groups and entities involved in terrorist acts — Question referred for a preliminary ruling concerning the validity of that inclusion — Compliance with international humanitarian law — Concept of ‘terrorist act’ — Actions by armed forces during periods of armed conflict)
Summary — Judgment of the Court (Grand Chamber), 14 March 2017
1.        Questions referred for a preliminary ruling — Assessment of validity — Question concerning the validity of the inclusion of an entity on the list of persons, groups and entities involved in terrorist acts — Implementing regulations relating to that inclusion that have not been contested on the basis of Article 263 TFEU — Action in the main proceedings brought by persons who did not unquestionably have standing to bring an action for annulment — Admissibility
(Arts 263, fourth para., TFEU and 267 TFEU; Council Regulations No 2580/2001, Art. 2(3), and No 610/2010)
2.        Common Foreign and Security Policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Freezing of funds –Measures adopted pursuant to an implementing power — Interpretation of the implementing measure in accordance with the basic act — Taking account of the context of the legislation at issue
(Art. 215(2) TFEU; Council Regulation No 610/2010)
3.        Common Foreign and Security Policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Freezing of funds –Concept of ‘terrorist acts’ — Actions by armed forces during periods of armed conflict, within the meaning of international humanitarian law — Included — Consequences for the validity of the inclusion of an entity on the list of persons, groups and entities involved in terrorist acts — None
(Council Common Position 2001/931/CFSP; Council Regulations No 2580/2001 and No 610/2010)
1.      A request for a preliminary ruling concerning the validity of an act of the European Union can be dismissed only in the event that, although the action for annulment of an act of the European Union would unquestionably have been admissible, the natural or legal person capable of bringing such an action abstained from doing so within the prescribed period and is pleading the unlawfulness of that act in national proceedings in order to encourage the national court to submit a request for a preliminary ruling to the Court of Justice concerning the validity of that act, thereby circumventing the fact that that act is final as against him once the time limit for his bringing an action has expired (see, to that effect, judgments of 9 March 1994, TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraph 18, and of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraph 30).
It is not obvious, within the meaning of the case-law based on the judgments of 9 March 1994, TWD Textilwerke Deggendorf (C‑188/92, EU:C:1994:90), and of 15 February 2001, Nachi Europe (C‑239/99, EU:C:2001:101), that actions for annulment of Council Implementing Regulation (EU) No 610/2010 of 12 July 2010 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation (EU) No 1285/2009 or the acts of the European Union preceding that implementing regulation and relating to the inclusion of the ‘Liberation Tigers of Tamil Eelam (LTTE)’ on the list referred to 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, brought before the General Court of the European Union by persons in a situation such as that of the appellants in the main proceedings, would have been admissible.
First of all, the appellants in the main proceedings were not themselves included on the list of those whose funds are to be frozen.
Next, it is not obvious that they were ‘individually’ concerned by those acts for the purposes of the fourth paragraph of Article 263 TFEU. Indeed, the inclusion of the LTTE on the list of those whose funds are to be frozen is of general application with regard to persons other than that entity, in that it serves to impose on an indeterminate number of persons an obligation to comply with specific restrictive measures against that entity (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; of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraph 51; 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).
Lastly, the situation of the appellants in the main proceedings was directly affected, not by the acts of the European Union relating to that inclusion, but by the imposing of sanctions based solely on Netherlands law, which took into account, among other factors, that inclusion.
(see paras 70, 72-75, operative part 1)
2.      See the text of the decision.
(see para. 79)
3.      As neither Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism nor Regulation No 2580/2001 precludes actions by armed forces during periods of armed conflict, within the meaning of international humanitarian law, from constituting ‘terrorist acts’ for the purposes of those acts of the European Union, the fact that the activities of the ‘Liberation Tigers of Tamil Eelam (LTTE)’ may constitute such actions does not affect the validity of Implementing Regulation No 610/2010 or that of the acts of the European Union preceding that implementing regulation and relating to the inclusion referred to in point 1 of the present operative part.
(see para. 98, operative part 2)