62016TJ0643_RES
Case T‑643/16
Gamaa Islamya Égypte
v
Council of the European Union
Judgment of the General Court (First Chamber), 10 April 2019
(Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Freezing of funds — Whether an authority of a third State can be classified as a competent authority within the meaning of Common Position 2001/931/CFSP — Factual basis of the decisions to freeze funds — Obligation to state reasons — Authentication of Council acts)
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 retention on the basis of a national decision to freeze funds — Competent authority to adopt that national decision — Concept — Authority of a non-member State — Included
(Council Common Position 2001/931, Art. 1(4))
(see paragraphs 81, 82)
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 retention on the basis of a national fund-freezing decision of an authority of a third State — Lawfulness — Condition — National decision adopted in accordance with the rights of the defence and the right to effective judicial protection — Council’s verification obligation — Obligation to state reasons — Scope
(Council Common Position 2001/931, Art. 1(4))
(see paragraphs 85-88, 133)
EU law — Principles — Rights of defence — Decision to freeze funds directed against certain persons and entities suspected of terrorist activities — Duties of the Council — Communication to the person concerned of inculpatory evidence and the right to be heard — Scope
(Council Common Position 2001/931, Art. 1(4))
(see paragraphs 93, 94)
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, prosecute or convict — Competent authority to adopt that national decision — Meaning — Administrative authority — Included — Conditions
(Council Common Position 2001/931, Art. 1(4))
(see paragraphs 110-116)
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, prosecute or convict — 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))
(see paragraphs 119-121)
Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Duty of sincere cooperation between Member States and the institutions of the European Union — Decision to freeze funds — Justification — Respecting fundamental rights — Judicial review — Scope
(Council Common Position 2001/931, Art. 1(4))
(see paragraphs 129-132)
Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Duty of sincere cooperation between Member States and the institutions of the European Union — Decision to freeze funds — Adoption or maintenance on the basis of a national decision to investigate, prosecute or convict — Obligation to state reasons — Scope — National decision to convict — No obligation to adduce the serious and credible evidence or clues underlying the national decision
(Council Common Position 2001/931, Art. 1(4))
(see paragraphs 140-146, 148)
Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds — Retention on the basis of a national decision to freeze funds — National decision no longer by itself supporting the conclusion that there is an ongoing risk of involvement in acts of terrorism — Obligation of the Council to take into account more recent facts which demonstrate that that risk is ongoing
(Council Common Position 2001/931, Art. 1(6))
(see paragraphs 154-157, 170)
Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to freeze funds directed against certain persons and entities suspected of terrorist activities — Minimum requirements
(Art. 296 TFEU)
(see paragraphs 160-163, 173)
European Union — Judicial review of the legality of the acts of the institutions — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds — Retention on the basis of a national decision to freeze funds — Ambit of the review — Review extending to all of the material used to demonstrate that the risk of involvement in acts of terrorism is ongoing
(Art. 296 TFEU; Council Common Position 2001/931, Art. 1(4) and (6))
(see paragraphs 160, 185, 186)
Actions for annulment — Grounds — Infringement of essential procedural requirements — Infringement of the provisions of the Council’s Rules of Procedure relating to the authentication of its acts — Whether necessary to rely on harm or defects other than lack of authentication — Not necessary
(Art. 297(2), first subpara., TFEU; Council’s Rules of Procedure, Art. 15)
(see paragraphs 196-204, 209, 210, 218, 219, 228, 229)
Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to freeze funds directed against certain persons and entities suspected of terrorist activities — Decision and statement of reasons are in separate documents — Separate publication is justified by overriding considerations in the public interest — Presumption that the unsigned statement of reasons is authentic — Absence — Obligation to authenticate the decision and the statement of reasons
(Art. 296 TFEU; Council’s Rules of Procedure, Art. 15)
(see paragraphs 214-216, 222, 223)
Résumé
In the judgment in Gamaa Islamiya Egypte v Council (T‑643/16), delivered on 10 April 2019, the General Court annulled a number of CFSP Council Decisions updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, (
1
) and several Council Implementing Regulations (EU) implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, (
2
) adopted between July 2016 and July 2018, to the extent that those acts concern the organisation Gamaa Islamiya Égypte. (
3
) It follows from the statements of reasons for the contested measures that the inclusion of the applicant’s name in the lists at issue was based on four national decisions, namely a decision adopted by a United Kingdom authority (‘the Home Secretary’s decision’) and three decisions adopted by the United States authorities.
In respect of the latter decisions, the General Court noted that, although the term ‘competent authority’ used in Article 1(4) of Common Position 2001/931 (
4
) is not limited to the authorities of the Member States but is capable, in principle, of also including the authorities of third States, when the Council acts on the basis of a decision by a third State, it must verify, first, whether that decision was adopted in accordance with the rights of the defence and the right to effective judicial protection. In this case, the General Court held, in respect of two of those decisions, that, since the United States authorities were not bound, in the light of the statements of reasons relating to the contested measures, to any obligation to disclose to the persons concerned reasoning to support their decisions, or even to publish those decisions, compliance with the principle of the rights of the defence was not ensured in respect of those decisions and, therefore, they could not serve as the basis for the contested measures. With regard to the first United States decision, the General Court went on to find that the single reference that that decision had been published in the United States’ official journal was insufficient for the purpose of establishing that the Council had carried out the requisite verification as to whether the rights of the defence had been respected in that third State. Accordingly, the General Court held that the statement of reasons relating to the United States decisions was insufficient, and that therefore those decisions could not serve as a basis for the contested measures.
However, the General Court stated that, since Article 1(4) of Common Position 2001/931 does not require Council measures to be based on several decisions of competent authorities, the contested measures could, as regards the inclusion of the applicant’s name on the lists at issue, refer to the Home Secretary’s decision alone, and it was therefore appropriate for the Court to proceed in its examination of the action by limiting that examination to the contested measures in so far as they were based, originally, on the latter decision.
The General Court then annulled the contested measures, first, since the deeds mentioned by the Council in the statements of reasons for the contested measures were not capable of justifying the retention of the applicant’s name on the lists at issue, on account of their insufficient reasoning and because they did not constitute a sufficient basis for such a measure, in the light of their age, inter alia. Secondly, the General Court held that the statements of reasons for the contested measures, which had been sent to the organisation concerned, had not been authenticated by the Council in accordance with the first subparagraph of Article 297(2) TFEU and Article 15 of its Rules of Procedure. (
5
) The authentication of Council acts is an essential procedural requirement which enables third parties to verify that the version that is sent to them corresponds to the act that has been adopted by the Council and thus guarantees compliance with the principle of legal certainty. Since the principle of legal certainty also concerns Council acts, they must be authenticated even though the Council is not a collegiate body. Moreover, since the reasons for and the operative part of a Council act constitute an indivisible whole, both must be authenticated even if they are in separate documents. Finally, since authentication is an essential procedural requirement, the annulment of the contested measures must be ordered without there being any need to examine whether the documents sent to the applicant correspond precisely to those adopted by the Council.
(
1
)	Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93).
(
2
)	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).
(
3
)	In this case, the annulment of Council Decision (CFSP) 2016/1136 of 12 July 2016 (OJ 2016 L 188, p. 21) and Council Implementing Regulation (EU) 2016/1127 of 12 July 2016 (OJ 2016 L 188, p. 1), Council Decision (CFSP) 2017/154 of 27 January 2017 (OJ 2017 L 23, p. 21) and Council Implementing Regulation (EU) 2017/150 of 27 January 2017 (OJ 2017 L 23, p. 3), Council Decision (CFSP) 2017/1426 of 4 August 2017 (OJ 2017 L 204, p. 95) and Council Implementing Regulation (EU) 2017/1420 of 4 August 2017 (OJ 2017 L 204, p. 3), Council Decision (CFSP) 2018/475 of 21 March 2018 (OJ 2018 L 79, p. 26) and Council Implementing Regulation (EU) 2018/468 of 21 March 2018 (OJ 2018 L 79, p. 7), Council Decision (CFSP) 2018/1084 of 30 July 2018 (OJ 2018 L 194, p. 144) and Council Implementing Regulation (EU) 2018/1071 of 30 July 2018 (OJ 2018 L 194, p. 23) was sought.
(
4
)	Under that provision, fund-freezing lists are to 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 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.
(
5
)	The Council’s Rules of Procedure, as adopted by Decision 2009/937/EU of 1 December 2009 (OJ 2009 L 325, p. 35).