Case T‑400/10 RENV

Hamas

v

Council of the European Union

(Common foreign and security policy — Restrictive measures taken 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 — Error of assessment — Right to effective judicial protection — Rights of defence — Right to property)

Summary — Judgment of the General Court (First Chamber, Extended Composition), 14 December 2018

Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Freezing of funds — Scope — Persons, groups and entities involved in terrorist acts — Meaning — Criterion for appraisal (Council Common Position 2001/931)

EU law — Principles — Rights of defence — Right to effective judicial protection — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds — Obligation to disclose incriminating evidence — Scope — Notification to the person concerned by means of a publication in the Official Journal of the European Union — Lawfulness — Right of access to documents — Right subject to request for access being made to the Council (Council Common Position 2001/931; Council Decision 2010/386/CFSP; Council Regulations No 2580/2001 and No 610/2010)

Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Freezing of the funds of an organisation involved in acts of terrorism — Restrictions on the right to property — No breach of the principle of proportionality (Council Common Position 2001/931; Council Decision 2010/386/CFSP; Council Regulations No 2580/2001 and No 610/2010)

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 — Meaning — Authority of a non-member State — Included (Council Common Position 2001/931, Art. 1(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 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 obligation to verify — Obligation to state reasons — Scope (Council Common Position 2001/931, Art. 1(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, prosecute or convict — Competent authority to adopt that national decision — Meaning — Administrative authority — Included — Conditions (Council Common Position 2001/931, Art. 1(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, 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))

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))

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 — 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))

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; Council Common Position 2001/931, Art. 1(4); Council Decisions 2011/430/CFSP, 2011/872/CFSP, 2012/333/CFSP, 2012/765/CFSP, 2013/395/CFSP and 2014/72/CFSP; Council Regulations No 687/2011, No 1375/2011, No 542/2012, No 1169/2012, No 714/2013 and No 125/2014)

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 — Scope of the review — Review extending to all of the material used to demonstrate that the risk of involvement in acts of terrorism is ongoing — Not all of the material being derived from a national decision adopted by a competent authority — Irrelevant (Art. 296 TFEU; Council Decisions 2011/430/CFSP, 2011/872/CFSP, 2012/333/CFSP, 2012/765/CFSP, 2013/395/CFSP and 2014/72/CFSP; Council Regulations No 687/2011, No 1375/2011, No 542/2012, No 1169/2012, No 714/2013 and No 125/2014)

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 EU institutions — Decision to freeze funds — Justification — Burden of proof borne by the Council — Scope (Council Common Position 2001/931, Art. 1(4); Council Regulation No 2580/2001, Art. 2(3))

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)