19.

In the judgment under appeal, the General Court held in essence as follows in relation to the third plea in law advanced by Al-Aqsa: ( 24 ) ‘164 The Court has … held that the Council … may not disregard subsequent developments [arising out of] investigations or … prosecution … … 168 In Sison II [ ( 25 )] … the Court … envisaged a situation in which police or security enquiries are closed without giving rise to any judicial consequences, because it proved impossible to gather sufficient evidence … The Court held that it would be unacceptable for the Council not to take account of such matters, which form part of the body of information having to be taken into account in order to assess the situation … To decide otherwise would be tantamount to giving the Council and the Member States excessive power to freeze a person’s funds indefinitely, beyond review by any court and whatever the result of any judicial proceedings taken. 169 The same considerations must apply where a national administrative measure freezing funds or proscribing an organisation as terrorist is withdrawn by the body that has issued it or been annulled by a judicial ruling … 170 In the present case, it is common ground that the Sanctieregeling was repealed on 3 August 2003, which was almost immediately after the entry into force, on 28 June 2003, of the initial Community measure freezing the applicant’s funds. 171 It is true in that regard that the contested decision [ ( 26 )] claims to be based not on the Sanctieregeling itself, but merely on the order of the court hearing the application for interim measures … However … it is not possible in this case to take into consideration the order of the court hearing the application for interim measures in isolation and without having regard at the same time to the Sanctieregeling. 172 It is appropriate to recognise therefore that since the repeal of the Sanctieregeling within the Netherlands legal order, the order of the court hearing the application for interim measures, which, as was pointed out above, forms an inseparable whole with the Sanctieregeling, can no longer provide a valid basis for a Community measure freezing the applicant’s funds. 173 By that order, the court hearing the application for interim measures simply refused to suspend the effects of the Sanctieregeling by way of an interim ruling. The Sanctieregeling definitively ceased to have any legal effects as a result of its repeal. The same must necessarily apply, in consequence, to the legal effects attaching to the order of the court hearing the application for interim measures, all the more so since that order contained only an interim ruling, without prejudice to a subsequent substantive ruling at the end of the proceedings. 174 In that regard, the Court also considers that the order of the court hearing the application for interim measures cannot, merely for the purposes of implementing Regulation No 2580/2001, have legal effects separable from those of the Sanctieregeling, effects that in the present case will continue to exist in Netherlands law despite the repeal of the Sanctieregeling. It is not moreover compatible with the general scheme of that regulation, a feature of which is the precedence that matters of national procedure must have in the Council’s assessment, for the Sanctieregeling, which no longer has any effects within the Netherlands legal order, to continue to have effect indirectly and indefinitely within the Community legal order, by means of the order of the court hearing the application for interim measures. 175 The same applies all the more since the order of the court hearing the application for interim measures, delivered in proceedings brought by the applicant, is contingent upon the Sanctieregeling. It is apparent from the statement of reasons of the Sanctieregeling that it had been adopted “pending the adoption of a Community decision” and that it was to be repealed “as soon as such a decision enters into force” … According to the explanations given by the Kingdom of the Netherlands at the hearing, the Sanctieregeling was repealed solely as a result of concern on the part of the Netherlands Government to avoid an overlap between a national measure and a Community measure freezing the applicant’s funds. It follows that the Sanctieregeling would have been repealed in any event immediately after the adoption of the initial Community measure freezing the applicant’s funds, whether or not the applicant had instituted interlocutory proceedings or substantive proceedings. 176 Such a mechanism in turn fails to take into account the general scheme of Regulation No 2580/2001, which makes the adoption of a Community fund-freezing measure conditional upon either the commencement and active continuation of national proceedings seeking, directly and chiefly, 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 … or the delivery and implementation of a decision convicting the person concerned for such deeds. 177 In the case under consideration, the fund-freezing decision, taken initially at national level, is justified “pending the adoption of a Community decision”, and the Community measure is justified in turn by the adoption of the national decision, which is immediately repealed. Such a mechanism is inevitably tainted by circular logic. 178 Far from being able to continue to take the order of the court hearing the application for interim measures as its basis, the Council should have drawn the logical conclusion from the repeal of the national fund-freezing measure and found that there was no longer any “substratum” in national law that justified to the required legal standard keeping the equivalent Community measure, and doing so whatever judicial proceedings were brought against the repealed national measure. … 180 In the circumstances of this case, the main feature of which is the repeal of the Sanctieregeling, it is necessary on the contrary to acknowledge that the Council overstepped the bounds of its discretion by continuing to include the applicant indefinitely in the list at issue, when periodically reviewing the latter’s situation pursuant to Article 1(6) of Common Position 2001/931 and Article 2(3) of Regulation No 2580/2001, solely on the ground that the decision of the court hearing the application for interim measures has not been challenged, in the Netherlands legal order, by the judicial body hearing an appeal in interlocutory proceedings or by the judicial body competent to adjudicate on the substance, whilst the administrative decision whose effects that court had been asked to suspend has in the meantime been repealed by the body which issued it. 181 This is all the more so because, as the applicant submitted at the hearing and was not challenged by the other parties, since the repeal of the Sanctieregeling, apart from giving effect to the contested decision under national law, the competent Netherlands administrative and judicial authorities have not taken any action to impose on the person concerned measures of a preventive or punitive nature in connection with the combating of terrorism and by reason of that person’s involvement in terrorism. … 184 In those circumstances, there is no need to rule on the claim that Regulation No 2580/2001 should be declared unlawful, pursuant to Article 241 EC (see, to that effect, Al‑Aqsa [I], paragraphs 66 and 67; see also Case C-91/05 Commission v Council [2008] ECR I-3651, paragraph 111).’