Case T-206/02

Kurdistan National Congress (KNK)

v

Council of the European Union

(Action for annulment – Specific restrictive measures directed against certain persons and entities with a view to combating terrorism – Locus standi – Association – Admissibility)

Order of the Court of First Instance (Second Chamber), 15 February 2005

Summary of the order

Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Action by an association promoting the general interests of a category of natural or legal persons – Condition – Locus standi of its members individually – Whether locus standi of former members to be taken into consideration – Not included

(Art. 230, fourth para., EC)

An association formed for the promotion of the collective interests of a category of persons cannot be considered to be individually concerned, for the purposes of the fourth paragraph of Article 230 EC, by a measure affecting the general interests of that category, and is therefore not entitled to bring an action for annulment where its members cannot do so individually. In that regard, it cannot be accepted that a person’s past membership of an association allows that association to rely on possible action by that person. To accept such reasoning would amount to offering an association a sort of perpetual entitlement to bring proceedings, despite the fact that the association can no longer claim to represent the interests of its former member.

(see paras 27, 32)

ORDER OF THE COURT OF FIRST INSTANCE (Second Chamber)

15 February 2005 ( )

(Action for annulment – Specific restrictive measures directed against certain persons and entities with a view to combating terrorism – Locus standi – Association – Admissibility)

In Case T-206/02,

Kurdistan National Congress (KNK), established in Brussels (Belgium), represented by J. Boisseau, lawyer,

applicant,

v

Council of the European Union, represented by M. Vitsentzatos and S. Marquardt, acting as Agents,

defendant,

supported by

Commission of the European Communities, represented initially by G. zur Hausen and G. Boudot, and subsequently by J. Enegren and G. Boudot, acting as Agents, with an address for service in Luxembourg,

and by

United Kingdom of Great Britain and Northern Ireland, represented initially by J. Collins, and subsequently by R. Caudwell, acting as Agents, with an address for service in Luxembourg,

interveners,

APPLICATION for annulment of Council Decision 2002/334/EC of 2 May 2002 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 and repealing Decision 2001/927/EC (OJ 2002 L 116, p. 33),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber),

composed of J. Pirrung, President, N.J. Forwood and S. Papasavvas, Judges,

Registrar: H. Jung,

makes the following

Order

Background to the case

1 The documents before the Court show that the Kurdistan Workers’ Party (PKK) first appeared in 1978, and entered into an armed struggle against the Turkish Government in order to obtain recognition for the right of the Kurds to self-determination. In July 1999 the PKK declared a unilateral ceasefire, subject to the right of self-defence. In April 2002 the Congress of the PKK announced the disbanding of the party.

2 The Kurdistan National Congress (KNK), established in 1999, is an organisation made up of some 30 organisations. The objective of the KNK is ‘to strengthen the unity and cooperation of the Kurds in all parts of Kurdistan and [to] support their struggle, based on the best interests of the Kurdish nation’ (Article 7(A) of the founding charter of the KNK). The PKK was a member of the KNK at the time the latter was established.

3 On 27 December 2001, considering that action by the Community was needed in order to implement Resolution 1373 (2001) of the United Nations Security Council, the Council adopted Common Position 2001/930/CFSP on combating terrorism (OJ 2001 L 344, p. 90) and Common Position 2001/931/CFSP on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93).

4 Article 2 of Common Position 2001/931 provides:

‘The European Community, acting within the limits of the powers conferred on it by the Treaty establishing the European Community, shall order the freezing of the funds and other financial assets or economic resources of persons, groups and entities listed in the Annex.’

5 On 27 December 2001 the Council adopted Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70).

6 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.

2. Except as permitted under Articles 5 and 6, it shall be prohibited to provide financial services 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/CFSP; such list shall consist of:

(i) natural persons committing, or attempting to commit, participating in or facilitating the commission of any act of terrorism;

(ii) legal persons, groups or entities committing, or attempting to commit, participating in or facilitating the commission of any act of terrorism;

(iii) legal persons, groups or entities owned or controlled by one or more natural or legal persons, groups or entities referred to in points (i) and (ii); or

(iv) natural [or] legal persons, groups or entities acting on behalf of or at the direction of one or more natural or legal persons, groups or entities referred to in points (i) and (ii).’

7 On 2 May 2002 the Council adopted Decision 2002/334/EC implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2001/927/EC (OJ 2002 L 116, p. 33; ‘the contested decision’). That decision included the PKK in the list provided for in Article 2(3) of Regulation No 2580/2001 (‘the list at issue’).

8 On 17 June 2002 the Council adopted Decision 2002/460/EC implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2002/334 (OJ 2002 L 160, p. 26). The name of the PKK was kept on the list at issue. That list has subsequently been regularly updated by Council decisions.

Procedure and forms of order sought

9 By application lodged at the Registry of the Court of First Instance on 2 July 2002, the KNK, represented by its President, Mr Serif Vanly, brought the present action for annulment.

10 By order of 24 February 2003, the Commission and the United Kingdom were granted leave to intervene in support of the Council.

11 By a separate document, the Council raised an objection of inadmissibility in this case under Article 114(1) of the Rules of Procedure of the Court of First Instance. The applicant and the Commission lodged their observations on that objection within the time-limits set. The United Kingdom waived its right to lodge such observations.

12 The Council, supported by the Commission, contends that the Court should:

– declare the application inadmissible;

– order the applicant to pay the costs.

13 The applicant claims that the Court should:

– designate an advocate general;

– request the European Parliament to make available the sound recording of the EU-Turkey Joint Parliamentary Committee meeting of 17 and 18 June 2002;

– declare the application admissible;

– order the Council to pay the costs of these interlocutory proceedings.

Admissibility

Arguments of the parties

14 The Council, supported by the Commission, argues that the contested decision is not of direct and individual concern to the KNK.

15 First, they contend that the decision is not addressed to the KNK and that the KNK is not referred to in it either expressly or implicitly. They point out that the only interest the KNK claims – the infringement of its diplomatic activity, its reputation and its credibility – is insufficient to distinguish it.

16 Second, the Council and the Commission argue that the KNK also does not have locus standi to bring proceedings on behalf of one of its members. On the one hand, the PKK is no longer a member of the KNK. On the other hand, in the alternative, the Council claims that the KNK is not an association that has been established in order to defend the collective interests of its members, within the meaning of the case-law, in view of the diversity of its members.

17 Third, the applicant’s argument that the absence of an effective legal remedy renders the action admissible should be rejected in the light of the judgment of the Court of Justice in Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 43.

18 Fourth, the Council and the Commission consider that the KNK has no legal interest in bringing proceedings since it is not claiming that its financial assets have been affected by the freezing of funds introduced by the contested decision.

19 The KNK contends, first of all, that it is not trying to protects its own interests but rather to establish historical accuracy, namely that the PKK has been disbanded and it has ceased all violent activity. Thus, the KNK is not seeking, through its action, to combat the effects of Regulation No 2580/2001, or to challenge future financial penalties which it will never have to suffer.

20 Quite the contrary, by its action the KNK is seeking annulment of the contested decision because the latter is seriously damaging the legitimacy of its political activity. The wrongful inclusion of the PKK in the list at issue is considerably discrediting the struggle initiated by the KNK. In that regard, the KNK points out that under Article 7(A) of its charter it was entrusted by its members to ‘support their struggle, based on the best interests of the Kurdish nation’.

21 The KNK points out that the PKK was disbanded in April 2002, thereby forever precluding itself from challenging the decision addressed to it. The fact that it has been disbanded means that the KNK must bring the proceedings for annulment. In that regard, the KNK points out that the Council has acknowledged that if the PKK had remained a member of the KNK the contested decision would have been of individual concern to the KNK.

22 Several incidents took place within the Council of Europe only a few days after the adoption of the contested decision. In particular, two of its eminent members were deprived of their privilege to attend the EU-Turkey Joint Parliamentary Committee meeting of 17 and 18 June 2002 on the ground that they were terrorists.

23 Furthermore, there is no other legal remedy for challenging the legality of the contested decision. Thus in order to avoid infringement of the general principles under Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms the application should be declared admissible. In that regard, the judgment in Unión de Pequeños Agricultores v Council, cited in paragraph 17 above, does not constitute an obstacle, because, in the present case, there is no need to consider national procedural law, since it is the actual adoption of the contested decision which affects the KNK.

Findings of the Court

24 Under Article 114(1) of the Rules of Procedure, if a party so applies, the Court may rule on admissibility without going into the substance of the case. Under Article 114(3), the remainder of the proceedings is to be oral unless the Court decides otherwise.

25 In this case, the Court considers that it is sufficiently informed by the documents in the file and that there is no need to open the oral procedure. In particular, given the clarity of the case-law, there is no need to designate an advocate general. Similarly, the request for production of a document of the European Parliament must be rejected since, even if such a document were to prove the applicant’s allegations, it would not alter the admissibility of the application.

26 It is common ground that the contested decision cannot be regarded as being addressed to the applicant since the latter’s name does not appear on the list at issue.

27 It has consistently been held that an association formed for the promotion of the collective interests of a category of persons cannot be considered to be individually concerned, for the purposes of the fourth paragraph of Article 230 EC, by a measure affecting the general interests of that category, and is therefore not entitled to bring an action for annulment where its members cannot do so individually (Joined Cases 19/62 to 22/62 Fédération nationale de la boucherie en gros et du commerce en gros des viandesand Others v Council [1962] ECR 491, 499, and Case T-69/96 Hamburger Hafen- und Lagerhaus and Others v Commission [2001] ECR II-1037, paragraph 49).

28 In this case, it should be stated that, according to Article 7(A) of the applicant’s founding charter, the objective of the KNK is to strengthen the unity and cooperation of the Kurds in all parts of Kurdistan and to support their struggle, based on the best interests of the Kurdish nation. It must therefore be considered to be an association formed for the promotion of the collective interests of a category of persons.

29 That conclusion is also demonstrated by the applicant’s first argument, that the inclusion of the PKK is seriously damaging its legitimacy and the exercise of its political activity. In putting forward this argument, the applicant is invoking the defence of the collective interests of its members. According to the case-law cited above, it cannot be individually concerned on that basis.

30 It is also necessary to verify whether the applicant may rely on the fact that one or more of its members are entitled to bring an action for annulment against the contested decision.

31 The applicant relies on the fact that the PKK was one of its members and that the latter would have been entitled to bring an action against the contested decision.

32 By that argument, the applicant acknowledges, and there is no reason to challenge the statement, that the PKK is no longer one of its members. In that regard, it cannot be accepted that a person’s past membership of an association allows that association to rely on possible action by that person. To accept such reasoning would amount to offering an association a sort of perpetual entitlement to bring proceedings, despite the fact that the association can no longer claim to represent the interests of its former member.

33 The fact that, according to the applicant, the PKK has been disbanded and that the applicant is now therefore the only person who can bring proceedings does not alter that conclusion. Were it correct, that assertion could lead only to a finding that the PKK is no longer in a position to bring an action. Accordingly, the applicant would also not be able to rely on the fact that one of its members was entitled to bring an action as an individual in order to bring an action itself.

34 The applicant also relies on the fact that some of its members were censured both before the European Parliament and before the Council of Europe a short time after the adoption of the contested decision.

35 Even if those facts were established, the applicant does not state how those members would themselves be entitled to bring an action for annulment against the contested decision. In any event, those incidents cannot be regarded as resulting from the legal effects of the contested decision.

36 Lastly, the applicant asserts that there is no legal remedy other than the present action for challenging the legality of the contested decision so far as the PKK is concerned.

37 It must be held that that assertion is incorrect. The fact that the applicant is not itself entitled to bring an action for annulment against the contested decision does not in any way mean that no other person to whom that decision is addressed or who is directly and individually concerned by the decision can bring such an action.

38 In that regard, it is a matter of common knowledge that the Council by its Decision 2004/306/EC of 2 April 2004 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2003/902/EC (OJ 2004 L 99, p. 28) included KADEK and Kongra-Gel on the list at issue, as alternative names of the PKK. By action brought on 25 June 2004, registered under number T-253/04 (OJ 2004 C 262, p. 28), Kongra-Gel sought annulment of that decision.

39 Since the applicant cannot rely on the fact that one of its members is entitled to bring an action for annulment against the contested decision, the conclusion must be drawn that the decision is not of individual concern to the applicant.

40 It follows from all the foregoing that the application must be dismissed as inadmissible.

Costs

41 Under Article 87(2) 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 applicant has been unsuccessful, it must be ordered to pay the costs, as applied for by the Council.

42 The first subparagraph of Article 87(4) of those Rules of Procedure provides that Member States and institutions which intervened in the proceedings are to bear their own costs. The United Kingdom and the Commission must therefore bear their own costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Second Chamber)

hereby orders:

1. The application is dismissed.

2. The applicant shall bear its own costs and pay those incurred by the Council.

3. The United Kingdom of Great Britain and Northern Ireland and the Commission shall bear their own costs.

Luxembourg, 15 February 2005.

H. Jung J. Pirrung