Joined Cases T‑208/11 and T‑508/11
Liberation Tigers of Tamil Eelam (LTTE)
v
Council of the European Union
(Common foreign and security policy — Restrictive measures against certain persons and entities with a view to combating terrorism — Freezing of funds — Applicability of Regulation (EC) No 2580/2001 to situations of armed conflict — Possibility for an authority of a non-member State to be classified as a competent authority within the meaning of Common Position 2001/931/CFSP — Factual basis of the decisions to freeze funds — Reference to terrorist acts — Need for a decision of a competent authority within the meaning of Common Position 2001/931)
Summary — Judgment of the General Court (Sixth Chamber, Extended Composition), 16 October 2014
1.      Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Freezing of funds — Regulation No 2580/2001 — Scope — Armed conflict within the meaning of international humanitarian law — Included
(Council Common Position 2001/931; Council Regulation No 2580/2001)
2.      Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds — Adoption or maintenance on the basis of a national decision to investigate or prosecute — Competent authority to adopt that national decision — Definition — Administrative authority — Included — Conditions
(Council Common Position 2001/931, Art. 1(4))
3.      Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds — Adoption or maintenance on the basis of a national decision to investigate or prosecute — No requirement that a national decision be taken in the context of criminal proceedings stricto sensu — Conditions
(Council Common Position 2001/931, Art. 1(4))
4.      Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds — Adoption or maintenance on the basis of a national decision to investigate or prosecute — Obligation of sincere cooperation — Inapplicability in relations between the Union and non-member States — No effect on the classification of authorities of a non-member State as competent authorities
(Art. 4(3) TFEU; Council Common Position No 2001/931, Art. 1(4); Council Regulation No 2580/2001, Art. 2(3))
5.      Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds — Adoption or maintenance on the basis of a national decision to investigate or prosecute — Competent authority to adopt the said national decision — Authority of a non-member State — Lawfulness — Conditions — Verification by the Council of the existence of legislation complying with the conditions imposed on competent authorities within the meaning of Council Common Position 2001/931
(Council Common Position 2001/931, Art. 1(4))
6.      Acts of the institutions — Statement of reasons — Obligation — Scope — Fund-freezing decision taken against certain persons and entities suspected of terrorist activities — Decision concerning a person or entity having committed terrorist acts in the past — Minimum requirements — Factual basis of the decision to rest on matters specifically examined and upheld in decisions of competent national authorities
(Council Common Position 2001/931)
7.      Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds — Adoption or maintenance on the basis of a national decision to investigate or prosecute — Re-examination in order to justify retention on the fund-freezing list — Council’s duty to state reasons — Scope
(Council Common Position 2001/931, Art. 1(4); Council Regulation No 2580/2001)
8.      Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds — Adoption or maintenance on the basis of a national decision to investigate or prosecute — Re-examination in order to justify retention on the fund-freezing list — Cooperation between the Council and competent authorities — Scope
(Council Common Position 2001/931, Art. 1(4); Council Regulation No 2580/2001)
9.      Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds — Persons or entities having committed terrorist acts in the past — Included — Conditions
(Council Common Position 2001/931; Council Regulation No 2580/2001)
10.    Actions for annulment — Judgment annulling a measure — Effects — Limitation by the Court — Restrictive measures taken against certain persons and entities with a view to combating terrorism — Decision to annul regulation taking effect as from the expiry of the time-limit for bringing an appeal or from the dismissal of the latter — Application of that period to when the annulment of the decision is to take effect
(Art. 264, second para., TFEU; Statute of the Court of Justice, Arts 56, first para., and 60, second para.; Implementing Regulation No 790/2014)
1.      The fact that international humanitarian law applies to a situation of armed conflict and to acts committed in that context does not imply that legislation on terrorism does not apply to those acts.
In the first place, the existence of an armed conflict within the meaning of international humanitarian law does not exclude the application of EU law provisions on terrorism to any acts of terrorism committed in that context. Common Position 2001/931 on the application of specific measures to combat terrorism makes no distinction as regards its scope according to whether or not the act in question is committed in the context of an armed conflict within the meaning of international humanitarian law. Moreover, the objectives of the European Union and its Member States are to combat terrorism, whatever form it may take, in accordance with the objectives of current international law.
Secondly, the perpetration of terrorist acts by participants in an armed conflict is expressly covered and condemned as such by international humanitarian law. Further, the existence of an armed conflict within the meaning of international humanitarian law does not appear to preclude, in the case of a terrorist act committed in the context of that conflict, the application not only of provisions of that humanitarian law on breaches of the laws of war, but also of provisions of international law specifically relating to terrorism.
(see paras 56-58, 62, 63)
2.      Even if the second subparagraph of Article 1(4) of Common Position 2001/931 contains a preference for decisions from judicial authorities, it in no way excludes the taking into account of decisions from administrative authorities where (i) those authorities are actually vested, in national law, with the power to adopt restrictive decisions against groups involved in terrorism and (ii) where those authorities, although only administrative, may nevertheless be regarded as ‘equivalent’ to judicial authorities.
(see para. 107)
3.      Common Position 2001/931 does not require that the decision of the competent authority should be taken in the context of criminal proceedings stricto sensu, even if that is more often the case. However, in the light of the objectives of Common Position 2001/931, in the context of the implementation of Security Council Resolution 1373 (2001), the purpose of the national proceedings in question must none the less be to combat terrorism in the broad sense.
Moreover, to be capable of being validly invoked by the Council, a decision to ‘instigat[e] … investigations or prosecut[e]’ within the meaning of Article 1(4) of Common Position 2001/931 must form part of national proceedings seeking, directly and primarily, the imposition on the person concerned of measures of a preventive or punitive nature, in connection with the combating of terrorism and by reason of that person’s involvement in terrorism.
(see paras 113, 114)
4.      See the text of the decision.
(see paras 132-136)
5.      An authority of a non-member State may be regarded as a competent authority within the meaning of Common Position 2001/931, However, before acting on the basis of a decision of an authority of a non-member State, the Council must carefully verify that the relevant legislation of that State ensures protection of the rights of defence and a right to effective judicial protection equivalent to that guaranteed at EU level. In addition, there cannot be evidence showing that the non-member State in practice fails to apply that legislation. In that case, the existence of legislation formally satisfying the conditions set out above would not allow the conclusion that the decision was one of a competent authority within the meaning of Common Position 2001/931.
In the absence of equivalence between the level of protection ensured by the legislation of a non-member State and that ensured at EU level, a finding that a national authority of a non-member State had the status of a competent authority within the meaning of Common Position 2001/931 would entail a difference in treatment between the persons covered by EU fund-freezing measures, according to whether the national decisions underlying those measures emanated from authorities of non-member States or authorities of Member States.
(see paras 135, 139, 140)
6.      Common Position 2001/931 requires, for the protection of the persons concerned and having regard to the lack of the European Union’s own means of investigation, that the factual basis of a decision of the European Union to freeze funds concerning terrorism be based not on information that the Council derived from the press or the internet, but on information which has been specifically examined and upheld in decisions of competent national authorities within the meaning of Common Position 2001/931.
It is only on such a reliable factual basis that the Council can then exercise its broad discretion in the context of the adoption of decisions to freeze funds at EU level, in particular as regards the considerations of appropriateness on which such decisions are based.
(see paras 187, 188)
7.      Although the essential question during a review is whether, since the inclusion of the person concerned in the list relating to frozen funds or since the last review, the factual situation has changed in such a way that it is no longer possible to draw the same conclusion concerning the involvement of that person in terrorist activities — with the consequence that the Council may, if necessary and within the context of its broad discretion, decide to maintain a person on the list relating to frozen funds in the absence of a change in the factual situation — the fact remains that any new terrorist act which the Council inserts in its statement of reasons during that review for the purposes of justifying maintaining the person concerned on the list relating to frozen funds must, in the two-tier decision-making system of Common Position 2001/931 and because of the Council’s lack of means of investigation, have been the subject of an examination and a decision by a competent authority within the meaning of that common position. The obligation upon the Council to base its fund-freezing decisions as far as concerns terrorism on a factual basis deriving from decisions of competent authorities arises directly from the two-tier system established by Common Position 2001/931. That obligation is not therefore subject to the action by the person or group concerned. On the basis of its duty to state reasons, which is an essential procedural requirement, the Council must state, in the grounds for its fund-freezing decisions, the decisions of competent national authorities which specifically examined and found the terrorist acts which it uses as a factual basis for its own decisions.
(see paras 204, 206)
8.      In the two-tier system of Common Position 2001/931, and for the purposes of ensuring the effectiveness of the fight against terrorism, it is for the Member States to regularly transmit to the Council, and for the Council to collect, the decisions of competent authorities adopted within those Member States, as well as the grounds for those decisions. If, despite that transmission of information, a decision of a competent authority concerning a specific act capable of constituting a terrorist act is not available to the Council, the Council, in the absence of its own means of investigation, must ask a competent national authority to assess that act, with a view to a decision being taken by that authority. For this purpose, the Council may contact the 28 EU Member States and in particular the Member States which have already examined the situation of the person or group concerned. It may also contact a non-member State which satisfies the conditions required with regard to protection of the rights of defence and of the right to effective judicial protection. The decision in question, which must, in the words of Common Position 2001/931, be an ‘instigation of investigations or prosecution … or [a] condemnation’, does not necessarily have to be the national decision periodically reviewing the placement of the person or group concerned on the national list relating to frozen funds. Even in the latter case, however, the existence at national level of a timing of periodic review which is different from that in force at EU level cannot justify the deferral by the Member State concerned of the examination of the act in question which the Council has requested. Having regard both to the two-tier structure of the system established by Common Position 2001/931 and to the mutual duties of sincere cooperation existing between the Member States and the European Union, the Member States must respond without delay to the Council’s requests to them for an assessment and, where appropriate, a decision of a competent authority within the meaning of Common Position 2001/931 of an act capable of constituting a terrorist act.
(see paras 210, 212, 213)
9.      The absence of any new terrorist act in respect of a given six month period does not in any way mean that the Council should withdraw the person or group concerned from the list relating to frozen funds. Nothing in the provisions of Regulation No 2580/2011 and of Common Position 2001/931 precludes the imposition or maintenance of restrictive measures on persons or entities that have in the past committed acts of terrorism, despite the lack of evidence to show that they are at present committing or participating in such acts, if the circumstances warrant it. Thus, the obligation to make new imputations of terrorist acts only on the basis of decisions of competent authorities does not in any way preclude the Council’s right to maintain the person concerned on the list relating to frozen funds, even after the cessation of the terrorist activity in the strict sense, if the circumstances warrant it.
(see para. 215)
10.    See the text of the decision.
(see paras 228, 229)