Case T-86/11

Nadiany Bamba

v

Council of the European Union

(Common foreign and security policy – Restrictive measures adopted in view of the situation in Côte d’Ivoire – Freezing of funds – Duty to state reasons)

Summary of the Judgment

1. Acts of the institutions – Statement of reasons – Obligation – Scope

(Art. 296 TFEU; Council Regulation No 560/2005, as amended by Regulation No 25/2011, Annex IA; Council Decision 2010/656, as amended by Decision 2011/18, Annex II)

2. Fundamental rights – Rights of the defence – Right to an effective judicial remedy – Scope

(Council Regulation No 560/2005, as amended by Regulation No 25/2011, Annex IA; Council Decision 2010/656, as amended by Decision 2011/18, Annex II)

3. Actions for annulment – Judgment annulling a measure – Effects

(Arts 264, second para., TFEU and 280 TFEU; Statute of the Court of Justice, Arts 56, first para., and 60, second para.; Council Regulation No 560/2005, as amended by Regulation No 25/2011; Council Decision 2010/656, as amended by Decision 2011/18)

1. The obligation to state reasons is the corollary to the principle of observance of the rights of the defence. Thus, the purpose of the obligation to state the reasons for a measure adversely affecting a person is, first, to provide that person with sufficient information to make it possible to ascertain whether the measure is well founded or whether it is vitiated by an error which may permit its legality to be contested before the European Union judicature and, second, to enable the judicature to review the legality of the measure.

Judicial review must be able to have regard in particular to the legality of the grounds on which the name of a person, entity or body is included in the list forming Annex II to Decision 2010/656 renewing the restrictive measures against Côte d’Ivoire and Annex IA to Regulation No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire by virtue of which a series of restrictive measures is imposed on that person, entity or body; if such review is to be effective, the European Union authority in question must communicate those grounds to the person or entity concerned, so far as possible, either when that inclusion is decided on or, at the very least, as swiftly as possible after that decision in order to enable that person or entity to exercise, within the periods prescribed, their right to bring an action. Where the party concerned is not afforded the opportunity to be heard before the adoption of an initial act imposing such measures, compliance with the obligation to state reasons is all the more important because it constitutes the sole safeguard enabling the party concerned, at least after the adoption of that act, to make effective use of the legal remedies available to it to challenge the lawfulness of that act.

Decision 2010/656 and Regulation No 560/2005 provide that persons, entities and bodies which are subject to restrictive measures must be informed of the grounds for their inclusion in the lists set out in Annex II to that decision and in Annex IA to that regulation.

In principle, the statement of reasons for an act of the Council which imposes such restrictive measures must refer not only to the legal conditions for application of that act, but also to the actual and specific reasons why the Council considers, in the exercise of its discretion, that such measures must be adopted in respect of the party concerned. Since the Council enjoys broad discretion with regard to the matters to be taken into consideration for the purpose of adopting or of maintaining in force a measure freezing funds, it cannot be required to state with greater precision in what way freezing a person’s funds may in concrete terms contribute to combating obstruction of the processes of peace and national reconciliation or to produce evidence to show that that person might use his or her funds to make such an obstruction in the future.

However, vague and general considerations, such as the indication that the person concerned is the director of the Cyclone group which publishes the newspaper Le Temps, are not of such a nature as to provide an adequate and specific statement of reasons for the contested acts against that person. That indication does not enable it to be understood how the person in question was involved in obstruction of the peace and reconciliation processes through public incitement to hatred and violence and through participation in disinformation campaigns in connection with the 2010 presidential election.

(see paras 38-40, 42, 47-48, 51-52)

2. Restrictive measures taken against a person as a result of their being included in the list set out in Annex II to Decision 2010/656 renewing the restrictive measures against Côte d’Ivoire and in Annex IA to Regulation No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire do not constitute criminal sanctions and, what is more, do not imply any accusation of a criminal nature.

Therefore, an allegation that that decision and that regulation do not provide for the communication, in a precise and detailed manner, of the nature and cause of the accusation must be dismissed, since it is based on the premiss that the restrictive measures in question in the present case are of a criminal nature and that Article 6(3)(a) of the European Convention for the Protection of Human Rights and Fundamental Freedoms is applicable. That provision, which provides that everyone charged with a criminal offence has the minimum right to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him, is applicable only in criminal matters.

(see para. 43)

3. Under the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union, by way of derogation from Article 280 TFEU, decisions of the General Court declaring a regulation to be void shall take effect only as from the date of expiry of the appeal period referred to in the first paragraph of Article 56 of that statute or, if an appeal has been brought within that period, as from the date of dismissal of the appeal. The Council therefore has a period of two months, with an additional extension of 10 days for distance, running from the date of notification of a judgment of the General Court declaring void, in so far as it concerns the applicant, a regulation imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire, to remedy the infringement found by adopting, if appropriate, a new restrictive measure against that applicant.

Moreover, the second paragraph of Article 264 TFEU – under which the General Court may, if it considers this necessary, state which of the effects of the regulation which it has declared void shall be considered as definitive – may also be applied, by analogy, to a decision when there are important reasons of legal certainty, comparable to those which arise where certain regulations are annulled, why the European Union judicature should exercise the power conferred upon it in this context by the second paragraph of Article 264 TFEU.

The existence of a difference between the date of effect of the annulment of Regulation No 25/2011 amending Regulation No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire and that of Decision 2011/18 amending Decision 2010/656 renewing the restrictive measures against Côte d’Ivoire, declared void, in so far as it concerns the same applicant, by the same judgment of the General Court, would be likely to entail a serious threat to legal certainty, since both acts impose identical measures on that applicant. The effects of Decision 2011/18 must therefore be maintained regarding that applicant until the annulment of Regulation No 25/2011 takes effect.

(see paras 58-59)

JUDGMENT OF THE GENERAL COURT (Fifth Chamber, Extended Composition)

8 June 2011 ( )

(Common foreign and security policy – Restrictive measures adopted in view of the situation in Côte d’Ivoire – Freezing of funds – Obligation to state reasons)

In Case T‑86/11,

Nadiany Bamba, residing in Abidjan (Côte d’Ivoire), represented by P. Haïk and J. Laffont, lawyers,

applicant,

v

Council of the European Union, represented by B. Driessen and A. Vitro, acting as Agents,

defendant,

supported by

European Commission, represented by E. Cujo and M. Konstantinidis, acting as Agents,

intervener,

APPLICATION for annulment of Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d’Ivoire (OJ 2011 L 11, p. 36) and of Council Regulation (EU) No 25/2011 of 14 January 2011 amending Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire (OJ 2011 L 11, p. 1), in so far as they concern the applicant,

THE GENERAL COURT (Fifth Chamber, Extended Composition),

composed of S. Papasavvas (Rapporteur), President, V. Vadapalas, K. Jürimäe, K. O’Higgins and M. van der Woude, Judges,

Registrar: T. Weiler, Administrator,

having regard to the written procedure and further to the hearing on 24 May 2011,

gives the following

Judgment

Background to the dispute

1 The applicant, Ms Nadiany Bamba, is a national of the Republic of Côte d’Ivoire.

2 On 15 November 2004, the United Nations Security Council adopted Resolution 1572 (2004) in which, inter alia, it asserted that the situation in Côte d’Ivoire continued to pose a threat to international peace and security in the region and decided to impose certain restrictive measures against that country.

3 Article 14 of Resolution 1572 (2004) sets up a committee (‘the Sanctions Committee’) responsible, inter alia, for designating the individuals and entities subject to the restrictive measures concerning displacement of persons and freezing of funds, financial assets and economic resources imposed in paragraphs 9 and 11 of the resolution, and regularly updating the list of those individuals and entities. The applicant has not been identified by the Sanctions Committee as being subject to such measures.

4 On 13 December 2004, considering that action by the European Community was needed in order to implement Resolution 1572 (2004), the Council of the European Union adopted Common Position 2004/852/CFSP concerning restrictive measures against Côte d’Ivoire (OJ 2004 L 368, p. 50).

5 On 12 April 2005, considering that a regulation was necessary in order to implement at Community level the measures described in Common Position 2004/852, the Council adopted Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire (OJ 2005 L 95, p. 1).

6 Common Position 2004/852 was extended and amended most recently by Council Common Position 2008/873/CFSP of 18 November 2008 renewing the restrictive measures against Côte d’Ivoire (OJ 2008 L 308, p. 52), before being repealed and replaced by Council Decision 2010/656/CFSP of 29 October 2010 renewing the restrictive measures against Côte d’Ivoire (OJ 2010 L 285, p. 28).

7 An election with a view to appointing the President of the Republic of Côte d’Ivoire took place on 31 October and 28 November 2010.

8 On 3 December 2010, the Special Representative of the United Nations Secretary-General for Côte d’Ivoire certified the final result of the second round of the presidential election as declared by the president of the Independent Electoral Commission on 2 December 2010, confirming Mr Alassane Ouattara as the winner of the presidential election.

9 On 13 December 2010, the Council emphasised the importance of the presidential election held on 31 October and 28 November 2010 for the return of peace and stability in Côte d’Ivoire and declared it to be imperative that the sovereign wish expressed by the Ivorian people be respected. It also took note of the conclusions of the United Nations Secretary-General in the context of his certification mandate and congratulated Mr Ouattara on his election as President of the Republic of Côte d’Ivoire.

10 On 17 December 2010, the European Council called on all Ivorian leaders, both civilian and military, who had not yet done so, to place themselves under the authority of the democratically elected President, Mr Ouattara. It confirmed the determination of the European Union to take targeted restrictive measures against those who continued to obstruct the respect of the sovereign will expressed by the Ivorian people.

11 In order to impose restrictive measures, concerning displacements, against certain persons who, although not designated by the United Nations Security Council or the Sanctions Committee, are obstructing the processes of peace and national reconciliation in Côte d’Ivoire, and in particular those who are jeopardising the proper outcome of the electoral process, the Council adopted Decision 2010/801/CFSP of 22 December 2010 amending Decision 2010/656 (OJ 2010 L 341, p. 45). The list of those persons is set out in Annex II to Decision 2010/656.

12 Article 4(1) of Decision 2010/656, as amended by Decision 2010/801, reads as follows:

‘Member States shall take the necessary measures to prevent the entry into, or transit through, their territories of:

(a) the persons referred to in Annex I and designated by the Sanctions Committee ...;

(b) the persons referred to in Annex II who are not included in the list in Annex I and who are obstructing the process of peace and national reconciliation, and in particular who are jeopardising the proper outcome of the electoral process.’

13 On 11 January 2011, the Council adopted Decision 2011/17/CFSP amending Decision 2010/656 (OJ 2011 L 11, p. 31) in order to include, in view of the seriousness of the situation in Côte d’Ivoire, additional persons in the list of those referred to in Annex II to Decision 2010/656.

14 On 14 January 2011, in view of the seriousness of the situation in Côte d’Ivoire, the Council adopted Decision 2011/18/CFSP amending Decision 2010/656 (OJ 2011 L 11, p. 36; ‘the contested decision’) in order to impose additional restrictive measures, in particular freezing of funds, on the persons referred to in Annex II to Decision 2010/656 and to amend that list.

15 Article 5(1) and (2) of Decision 2010/656, as amended by the contested decision, read as follows:

‘1. All funds and economic resources owned or controlled directly or indirectly by:

(a) the persons referred to in Annex I designated by the Sanctions Committee ..., or held by entities owned or controlled directly or indirectly by them or by any persons acting on their behalf or at their direction, as designated by the Sanctions Committee,

(b) the persons or entities referred to in Annex II who are not included in the list in Annex I and who are obstructing the process of peace and national reconciliation, and in particular who are jeopardising the proper outcome of the electoral process, or held by entities owned or controlled directly or indirectly by them or by any persons acting on their behalf or at their direction,

shall be frozen.

2. No funds, financial assets or economic resources shall be made available, directly or indirectly, to or for the benefit of persons or entities referred to in paragraph 1.’

16 In view of the specific threat to international peace and security posed by the situation in Côte d’Ivoire, and to ensure consistency with the process for amending and reviewing Annexes I and II to Decision 2010/656, on 14 January 2011 the Council adopted Regulation (EU) No 25/2011 amending Regulation No 560/2005 (OJ 2011 L 11, p. 1; ‘the contested regulation’).

17 Article 2 of Regulation No 560/2005, as amended by the contested regulation, reads as follows:

‘1. All funds and economic resources belonging to, owned, held or controlled by the natural or legal persons, entities and bodies listed in Annex I or in Annex IA shall be frozen.

2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of the natural or legal persons, entities or bodies listed in Annex I or in Annex IA.

3. The participation, knowing and intentional, in activities the object or effect of which is, directly or indirectly, to circumvent the measures referred to in paragraphs 1 and 2 shall be prohibited.

4. Annex I shall consist of the natural or legal persons, entities and bodies referred to in Article 5(1)(a) of Decision [2010/656] as amended.

5. Annex IA shall consist of the natural or legal persons, entities and bodies referred to in Article 5(1)(b) of Decision [2010/656] as amended.’

18 In the contested decision and the contested regulation (taken together, ‘the contested acts’), the Council amended the list of persons subject to the restrictive measures set out in Annex II to Decision 2010/656 and in Annex IA to Regulation No 560/2005. On that occasion, the name of the applicant was included, for the first time, in paragraph 6 of Table A (Persons) of each of those annexes, with a note of the following reasons: ‘Director of the Cyclone group which publishes the newspaper “Le Temps”: Obstruction of the peace and reconciliation processes through public incitement to hatred and violence and through participation in disinformation campaigns in connection with the 2010 presidential election.’

19 On 18 January 2011, the Council published the notice for the attention of the persons and entities to which restrictive measures provided for in Decision 2010/656 and Regulation No 560/2005 apply (OJ 2011 C 14, p. 8). In that notice, the Council mentions that it has decided that the persons and entities that appear in Annex II to Decision 2010/656, as amended by the contested decision, and in Annex IA to Regulation No 560/2005, as amended by the contested regulation, should be included in the lists of persons and entities subject to restrictive measures provided for in those acts. Moreover, it draws those persons’ and entities’ attention to the possibility of making an application to the competent authorities of the relevant Member State in order to obtain an authorisation to use frozen funds for basic needs or specific payments. It states, furthermore, that those persons and entities may submit a request to the Council that the decision to include them in the lists in question should be reconsidered. Finally, the Council mentions the possibility of challenging its decision before the General Court.

20 On 31 January 2011, the Council adopted Decision 2011/71/CFSP amending Decision 2010/656 (OJ 2011 L 28, p. 60) and Implementing Regulation (EU) No 85/2011 implementing Regulation No 560/2005 (OJ 2011 L 28, p. 32), by which it, inter alia, included new persons and entities in the list of persons and entities set out in Annex II to Decision 2010/656 and in Annex IA to Regulation No 560/2005.

21 On 2 February 2011, the Council published a further notice for the attention of the persons and entities to which restrictive measures provided for in Decision 2010/656 and Regulation No 560/2005 apply (OJ 2011 C 33, p. 16), providing the persons concerned with the same information as was contained in the notice of 18 January 2011.

22 On 6 April 2011, the Council adopted Decision 2011/221/CFSP amending Decision 2010/656 (OJ 2011 L 93, p. 20) and Regulation (EU) No 330/2011 amending Regulation No 560/2005 (OJ 2011 L 93, p. 10), in which it, inter alia, imposed additional restrictive measures and amended the lists of persons and entities set out in Annexes I and II to Decision 2010/656 and in Annexes I and IA to Regulation No 560/2005.

23 On 7 April 2011, the Council published two notices for the attention of the persons to which restrictive measures provided for in Council Decision 2010/656, as amended by Decision 2011/221, and in Regulation No 560/2005, as amended by Regulation No 330/2011, apply (OJ 2011 C 108, pp. 2 and 4).

24 On 8 April 2011, the Council adopted Implementing Decision 2011/230/CFSP implementing Decision 2010/656 (OJ 2011 L 97, p. 46) and Implementing Regulation (EU) No 348/2011 implementing Regulation No 560/2005 (OJ 2011 L 97, p. 1), in which it deleted four entities from the list set out in Annex II to Decision 2010/656 and in Annex IA to Regulation No 560/2005.

25 On 29 April 2011, the Council adopted Implementing Decision 2011/261/CFSP implementing Decision 2010/656 (OJ 2011 L 111, p. 17) and Implementing Regulation (EU) No 419/2011 implementing Regulation No 560/2005 (OJ 2011 L 111, p. 1), in which it deleted six entities from the list set out in Annex II to Decision 2010/656 and in Annex IA to Regulation No 560/2005.

Proceedings and forms of order sought by the parties

26 By application lodged at the Registry of the Court on 14 February 2011, the applicant brought the present action.

27 By separate document lodged at the Registry of the Court on that same day, the applicant applied for the case to be decided under an expedited procedure, pursuant to Article 76a of the Rules of Procedure of the Court.

28 By decision of 3 March 2011, the Court (Fifth Chamber) granted the application for the case to be resolved under an expedited procedure, pursuant to Article 76a of the Rules of Procedure.

29 On 13 April 2011, pursuant to Article 14 of the Rules of Procedure and on the proposal of the Fifth Chamber, the Court decided to refer the case to a Chamber sitting in extended composition.

30 Upon hearing the report of the Judge-Rapporteur, the Court (Fifth Chamber, Extended Composition) decided to open the oral procedure.

31 By document lodged at the Registry of the Court on 11 May 2011, the European Commission sought leave to intervene in the present case in support of the form of order sought by the Council. By order of 20 May 2011, after hearing the parties, the President of the Fifth Chamber (Extended Composition) of the Court granted the application to intervene.

32 The parties presented oral argument and replied to the oral questions of the Court at the hearing on 24 May 2011.

33 The applicant claims that the Court should:

– annul the contested acts, in so far as they concern her;

– order the Council to pay the costs.

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

– dismiss the action;

– order the applicant to pay the costs.

Law

35 In support of the action, the applicant raises two pleas in law, the first alleging breach of the rights of the defence and the right to an effective remedy and the second alleging a breach of the right to property.

36 In the first plea in law, the applicant argues that the contested acts breach the rights of the defence and the right to an effective remedy before an independent and impartial tribunal, guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (OJ 2007 C 303, p. 1) and by Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’). According to the applicant, the contested acts do not provide for any procedure enabling the guarantee of an effective exercise of the rights of the defence, do not provide for the communication of a detailed statement of reasons for the inclusion in the list of persons subject to restrictive measures, and do not provide for the notification of remedies and time-limits for actions against the decision for inclusion in that list, nor do they contain any related information.

37 The argument alleging that the contested acts do not provide for the communication of a detailed statement of reasons for the inclusion in the list of persons subject to restrictive measures must be considered first.

38 In that regard, it should be recalled that the obligation to state reasons is the corollary to the principle of observance of the rights of the defence. Thus, the purpose of the obligation to state the reasons for a measure adversely affecting a person is, first, to provide that person with sufficient information to make it possible to ascertain whether the measure is well founded or whether it is vitiated by an error which may permit its legality to be contested before the European Union judicature and, second, to enable the judicature to review the legality of the measure (Case T‑228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II‑4665 (‘OMPI’), paragraph 138, and Case T‑49/07 Fahas v Council [2010] ECR II‑0000, paragraph 51).

39 Judicial review must be able to have regard in particular to the legality of the grounds on which, as in this case, the name of a person, entity or body is included in the list forming Annex II to Decision 2010/656 and Annex IA to Regulation No 560/2005 by virtue of which a series of restrictive measures is imposed on that person, entity or body; if such review is to be effective, the European Union authority in question must communicate those grounds to the person or entity concerned, so far as possible, either when that inclusion is decided on or, at the very least, as swiftly as possible after that decision in order to enable that person or entity to exercise, within the periods prescribed, their right to bring an action (see, to that effect and by analogy, Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351, paragraph 336, and Fahas v Council, paragraph 60).

40 As the party concerned is not afforded the opportunity to be heard before the adoption of an initial act imposing such measures, compliance with the obligation to state reasons is all the more important because it constitutes the sole safeguard enabling the party concerned, at least after the adoption of that act, to make effective use of the legal remedies available to it to challenge the lawfulness of that act (see OMPI, paragraph 140 and the case-law cited).

41 In the present case, it must first be stated that, when the Council decides to apply to a person or entity the measures referred to in Article 4(1)(b) of Decision 2010/656, Article 7(3) of that decision, as amended by Decision 2010/801, provides that it is to communicate its decision, including the grounds for listing, to the person or entity concerned, either directly, if the address is known, or through the publication of a notice, providing such person or entity with an opportunity to present observations. Next, Article 8(1) of Decision 2010/656, as amended by Decision 2010/801, provides, inter alia, that Annex II is to include the grounds for listing persons and entities. Finally, Articles 2a(1) and 11a(3) of Regulation No 560/2005, inserted into that regulation by the contested regulation, lay down provisions similar to those set out in Articles 7(3) and 8(1) of Decision 2010/656, concerning inclusion in the list of persons, entities and bodies which are subject to restrictive measures under that regulation and inclusion in Annex IA thereto.

42 It follows from the foregoing that Decision 2010/656 and Regulation No 560/2005 provide that persons, entities and bodies which are subject to restrictive measures must be informed of the grounds for their inclusion in the lists set out in Annex II to that decision and in Annex IA to that regulation.

43 In that regard, the allegation that the contested acts do not provide for the communication, in a precise and detailed manner, of the nature and cause of the accusation must be dismissed, since it is based, having regard to the case-law cited by the applicant, on the premiss that the restrictive measures in question in the present case are of a criminal nature and that Article 6(3)(a) of the ECHR is applicable. Those restrictive measures do not constitute criminal sanctions and, what is more, do not imply any accusation of a criminal nature (see, to that effect, judgment of 11 July 2007 in Case T‑47/03 Sison v Council, not published in the ECR, paragraph 101, and Fahas v Council, paragraph 67). In any event, Article 6(3)(a) of the ECHR, which provides that everyone charged with a criminal offence has the minimum right to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him, is applicable only in criminal matters (Case C‑14/07 Weiss und Partner [2008] ECR I‑3367, paragraph 57).

44 It is still to be determined whether, in the present case, the reasons for including the applicant in the list of persons set out in Annex II to Decision 2010/656 and in Annex IA to Regulation No 560/2005 were communicated to her such that she could exercise her rights of defence and her right to an effective legal remedy.

45 According to the applicant, the reasons set out in the annexes to the contested acts (see paragraph 18 above) do not constitute a statement of reasons within the meaning of Article 6 of the ECHR and, failing the presentation of specific acts for which she can be held responsible, she cannot ascertain, in detail, the nature and cause of the accusation against her. In that context, she emphasises that she denies having been involved in obstructing the peace and reconciliation processes, in incitement to hatred and violence and in disinformation campaigns, but is not allowed to put forward her denial. Consequently, it is not possible for her to dispute, before the European Union judicature, the merits of the accusations against her.

46 The Council submits that the contested acts satisfy the duty to state reasons laid down in Article 296 TFEU and clarified in case-law. The reasons set out in the contested acts are sufficient to enable the applicant to ascertain the reasons why she was designated and to place her in a position which enables her to dispute those reasons.

47 In that regard, it must be borne in mind that, in principle, the statement of reasons for an act of the Council which imposes restrictive measures, such as those in question in the present case, must refer not only to the legal conditions for application of that act, but also to the actual and specific reasons why the Council considers, in the exercise of its discretion, that such measures must be adopted in respect of the party concerned (see, to that effect and by analogy, OMPI, paragraph 146, and Fahas v Council, paragraph 53).

48 Since the Council enjoys broad discretion with regard to the matters to be taken into consideration for the purpose of adopting or of maintaining in force a measure freezing funds, it cannot be required to state with greater precision in what way freezing the applicant’s funds may in concrete terms contribute to combating obstruction of the processes of peace and national reconciliation or to produce evidence to show that the applicant might use her funds to make such an obstruction in the future (see, to that effect and by analogy, Fahas v Council, paragraph 57 and the case-law cited).

49 In the present case, it is apparent, in essence, from recitals 6 and 7 in the preamble to the contested decision, that it was in view of the seriousness of the situation in Côte d’Ivoire that the Council decided, inter alia, to amend the list of persons subject to the restrictive measures set out in Annex II to Decision 2010/656. In the same way, according to recital 4 in the preamble to the contested regulation, it was in view of the specific threat to international peace and security posed by the situation in Côte d’Ivoire, and to ensure consistency with the process for amending and reviewing Annexes I and II to Decision 2010/656 that the Council amended the lists in Annexes I and IA to Regulation No 560/2005.

50 Moreover, it is apparent from paragraph 6 of Table A in Annex II to Decision 2010/656 and of Table A in Annex IA to Regulation No 560/2005 that the applicant was included in the lists set out in those annexes on the ground that she was the director of the Cyclone group which published the newspaper ‘Le Temps’, and that she was involved in obstruction of the peace and reconciliation processes through public incitement to hatred and violence and through participation in disinformation campaigns in connection with the 2010 presidential election.

51 It must be stated that, in that statement of reasons, the Council merely sets out vague and general considerations. It does not indicate the actual and specific reasons why it considers, in the exercise of its discretion, that the restrictive measures in question must be adopted in respect of the applicant.

52 In particular, the indication that the applicant is the director of the Cyclone group which publishes the newspaper ‘Le Temps’ does not constitute a circumstance such as to provide an adequate and specific statement of reasons for the contested acts against her. That indication does not enable it to be understood how the applicant was involved in obstruction of the peace and reconciliation processes through public incitement to hatred and violence and through participation in disinformation campaigns in connection with the 2010 presidential election. No concrete evidence, which could be used against the applicant and which could justify the measures in question, is thus set out.

53 It is true that, according to case-law, detailed publication of the complaints put forward against the parties concerned might not only conflict with the overriding considerations of public interest related to the security of the European Union and its Member States, or the conduct of their international relations, but also jeopardise the legitimate interests of the persons and entities in question, in that it would be capable of causing serious damage to their reputation, and the Court has therefore found, exceptionally, that only the operative part of the decision and a general statement of reasons need be in the version of the decision to freeze funds published in the Official Journal, it being understood that the actual, specific statements of reasons for that decision must be formalised and brought to the knowledge of the parties concerned by any other appropriate means (see, to that effect and by analogy, OMPI, paragraph 147). However, there is no evidence to show that, in the circumstances of the present case, detailed publication of the complaints put forward against the applicant would have conflicted with such overriding considerations of public interest or would have jeopardised such legitimate interests. The Council, moreover, did not present any such evidence.

54 Finally, even if, in a case, where there is not a failure to state reasons but, as in the present case, insufficient reasoning, grounds put forward during the proceedings may in exceptional cases render irrelevant an argument that insufficient reasons were given (judgment of 28 February 2008 in Case C‑17/07 P Neirinck v Commission, not published in the ECR, paragraph 51), the fact remains, and without it being necessary to rule on whether the present case is exceptional, that no additional reason was communicated to the applicant following the adoption of the contested acts or even during the proceedings before the General Court. The Council merely mentioned, in the course of the written procedure, that the applicant had been included in the list of persons subject to restrictive measures due to ‘her responsibility for the campaign of disinformation and incitement to hatred and intercommunity violence in Côte d’Ivoire’, adding that she was ‘one of the principal collaborators’ of Mr Laurent Gbagbo and that she was his ‘second wife’. None the less, at the hearing, it indicated to the General Court that it was not that fact which was the reason behind the inclusion of the applicant in that list.

55 In that context, it should also be noted that the fact that the applicant did not, following the publication either of the contested acts or of the notice of 18 January 2011, ask the Council to communicate to her the actual and specific reasons for her inclusion in the list in question is irrelevant in the present case, since the obligation to state reasons falls to the Council and it must fulfil that obligation either when that inclusion is decided on or, at the very least, as swiftly as possible after that decision, according to the case-law referred to in paragraph 39 above.

56 It follows from the foregoing that the statement of reasons in the contested acts did not enable the applicant to challenge their validity before the Court or enable the Court to review their legality.

57 It follows that the contested acts must be annulled, in so far as they concern the applicant, without there being a need to examine the other complaints in the first plea and in the second plea.

58 Regarding the temporal effects of annulment of the contested regulation, it must be borne in mind that, under the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union, by way of derogation from Article 280 TFEU, decisions of the General Court declaring a regulation to be void shall take effect only as from the date of expiry of the appeal period referred to in the first paragraph of Article 56 of that statute or, if an appeal has been brought within that period, as from the date of dismissal of the appeal. The Council therefore has a period of two months, with an additional extension of 10 days for distance, running from the date of notification of this judgment, to remedy the infringement found by adopting, if appropriate, a new restrictive measure against the applicant. In the present case, the danger of serious and irreversible prejudice to the effectiveness of the restrictive measures imposed by the contested regulation does not appear to be sufficiently great, having regard to the considerable impact of the restrictive measures concerned on the applicant’s rights and freedoms, to justify the maintenance of the effects of that regulation against her for a period exceeding that laid down in the second paragraph of Article 60 of the Statute of the Court of Justice.

59 Regarding the temporal effects of annulment of the contested decision, it must be borne in mind that the second paragraph of Article 264 TFEU – under which the General Court may, if it considers this necessary, state which of the effects of the regulation which it has declared void shall be considered as definitive – may also be applied, by analogy, to a decision when there are important reasons of legal certainty, comparable to those which arise where certain regulations are annulled, why the European Union judicature should exercise the power conferred upon it in this context by the second paragraph of Article 264 TFEU (see, to that effect, Case C‑271/94 Parliament v Council [1996] ECR I‑1689, paragraph 40; Case C‑106/96 United Kingdom v Commission [1998] ECR I‑2729, paragraph 41; and Case C‑22/96 Parliament v Council [1998] ECR I‑3231, paragraphs 41 and 42). In the present case, the existence of a difference between the date of effect of the annulment of the contested regulation and that of the contested decision would be likely to entail a serious threat to legal certainty, since both acts impose identical measures on the applicant. The effects of the contested decision must therefore be maintained regarding the applicant until the annulment of the contested regulation takes effect.

Costs

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

61 Under the first subparagraph of Article 87(4) of the Rules of Procedure, institutions which have intervened in the proceedings are to bear their own costs. The Commission must therefore be ordered to bear its own costs.

On those grounds,

THE GENERAL COURT (Fifth Chamber, Extended Composition)

hereby:

1. Annuls Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d’Ivoire and Council Regulation (EU) No 25/2011 of 14 January 2011 amending Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire, in so far as they concern Ms Nadiany Bamba;

2. Maintains the effects of Decision 2011/18 regarding Ms Bamba until the annulment of Regulation No 25/2011 takes effect;

3. Orders the Council of the European Union to pay, in addition to its own costs, those incurred by Ms Bamba;

4. Orders the European Commission to bear its own costs.

Papasavvas Vadapalas Jürimäe

O’Higgins Van der Woude

Delivered in open court in Luxembourg on 8 June 2011.

[Signatures]