OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 3 June 2021 ( 1 )

Case C‑833/19 P

Council of the European Union

v

Hamas

(Appeal – Common foreign and security policy (CFSP) – Fight against terrorism – Restrictive measures taken against certain persons, groups and entities – Freezing of funds and economic resources – Maintaining an organisation on the list of persons, groups and entities involved in acts of terrorism – Essential procedural requirements – Signing and authentication of statements of reasons for decisions and regulations of the Council of the European Union imposing restrictive measures)

I. Introduction

1. The present case has been brought in connection with the restrictive measures adopted by the Council of the European Union with a view to combating terrorism further to United Nations Security Council Resolution 1373 (2001), and in particular the restrictive measures adopted against ‘Hamas’, including ‘Hamas -Izz al-Din al-Qassem’ (‘Hamas’).

2. By its appeal, the Council seeks to have set aside the judgment of the General Court of the European Union of 4 September 2019, Hamas v Council, ( 2 ) by which the General Court annulled, first, Council Decision (CFSP) 2018/475 of 21 March 2018 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, and repealing Decision (CFSP) 2017/1426, ( 3 ) and Council Implementing Regulation (EU) 2018/468 of 21 March 2018 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 Implementing Regulation (EU) 2017/1420, ( 4 ) as well as, second, Council Decision (CFSP) 2018/1084 of 30 July 2018 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, and repealing Decision (CFSP) 2018/475, ( 5 ) and Council Implementing Regulation (EU) 2018/1071 of30 July 2018 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation (EU) 2018/468 ( 6 ) (together, ‘the contested measures’), in so far as those measures concern Hamas.

3. The question raised by this case provides the Court with the opportunity to clarify the scope of the obligation to sign and, therefore, to authenticate non-legislative acts adopted by the Council in the field of the common foreign and security policy (CFSP). More specifically, the Court is called upon to establish whether, pursuant to the first subparagraph of Article 297(2) TFEU and to Article 15 of the Council’s Rules of Procedure, as adopted by Decision 2009/937/EU of 1 December 2009 ( 7 ) and in the light of the obligation to provide a statement of reasons laid down in Article 296 TFEU, the obligation to sign acts of the Council also applies in respect of the statements of reasons for such acts, which are contained in separate documents.

4. The answer to that question is of particular importance as regards the implementation of the restrictive measures adopted within the framework of the CFSP, having regard to the Council’s consistent practice of signing only the acts and not the statements of reasons related to them, and could have consequences for the scope of the obligation to sign the annexes related to legislative and administrative acts of the institutions of the European Union.

II. Legal context

A. United Nations Security Council Resolution 1373 (2001)

5. On 28 September 2001, the United Nations Security Council adopted Resolution 1373 (2001) laying out wide-ranging strategies to combat terrorism and in particular the fight against the financing of terrorism. Paragraph 1(c) of that resolution provides, inter alia, that all States must freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled by such persons; and of persons and entities acting on behalf of, or at the direction of, such persons and entities.

6. The resolution does not provide for a list of persons to whom those restrictive measures must be applied.

B. EU law

1. FEU Treaty

7. The second paragraph of Article 296 TFEU reads as follows: ‘Legal acts shall state the reasons on which they are based and shall refer to any proposals, initiatives, recommendations, requests or opinions required by the Treaties.’

8. Article 297 TFEU provides: ‘1. Legislative acts adopted under the ordinary legislative procedure shall be signed by the President of the European Parliament and by the President of the Council. Legislative acts adopted under a special legislative procedure shall be signed by the President of the institution which adopted them. Legislative acts shall be published in the Official Journal of the European Union. They shall enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication. 2. Non-legislative acts adopted in the form of regulations, directives or decisions, when the latter do not specify to whom they are addressed, shall be signed by the President of the institution which adopted them. Regulations and directives which are addressed to all Member States, as well as decisions which do not specify to whom they are addressed, shall be published in the Official Journal of the European Union. They shall enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication. Other directives, and decisions which specify to whom they are addressed, shall be notified to those to whom they are addressed and shall take effect upon such notification.’

2. Common Position 2001/931

9. In order to implement Resolution 1373 (2001), the Council adopted Common Position 2001/931/CFSP. ( 8 )

10. Article 1(1), (4) and (6) of that common position provides: ‘1. This Common Position applies in accordance with the provisions of the following Articles to persons, groups and entities involved in terrorist acts and listed in the Annex. … 4. The list in the Annex shall 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, groups 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. Persons, groups and entities identified by the Security Council of the United Nations as being related to terrorism and against whom it has ordered sanctions may be included in the list. For the purposes of this paragraph “competent authority” shall mean a judicial authority, or, where judicial authorities have no competence in the area covered by this paragraph, an equivalent competent authority in that area. … 6. The names of persons and entities on the list in the Annex shall be reviewed at regular intervals and at least once every six months to ensure that there are grounds for keeping them on the list.’

3. Regulation No 2580/2001

11. In order to implement the measures described in Common Position 2001/931, the Council adopted Regulation No 2580/2001.

12. Article 2 of that regulation 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]; 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).’ ( 9 )

4. The Council’s Rules of Procedure

13. Article 12 of the Council’s Rules of Procedure, which is entitled ‘Ordinary written procedure and silence procedure’, provides, in paragraphs 1 and 3 thereof: ‘1. Acts of the Council on an urgent matter may be adopted by a written vote where the Council or [the Committee of Permanent Representatives (Coreper)] unanimously decides to use that procedure. In special circumstances, the President may also propose the use of that procedure; in such a case, written votes may be used where all members of the Council agree to that procedure. … 3. The General Secretariat shall establish that the written procedures have been completed.’

14. Under Article 15 of the Council’s Rules of Procedure, which is entitled ‘Signing of acts’: ‘The text of the acts adopted by the Council and that of the acts adopted by the European Parliament and the Council in accordance with the ordinary legislative procedure shall be signed by the President in office at the time of their adoption and by the Secretary-General. The Secretary-General may delegate his or her power to sign to Directors-General of the General Secretariat.’

III. The background to the dispute

15. Article 1(1) of Common Position 2001/931, which was implemented by Regulation No 2580/2001 and by Decision 2001/927, established the list of persons, groups and entities involved in acts of terrorism (‘the list at issue’), which was regularly updated by subsequent acts of the Council.

16. Since the adoption of those acts, the name Hamas has been included on the list at issue, first as ‘Hamas-Izz al-Din al-Qassem (terrorist wing of Hamas)’, then as ‘“Hamas”, including “Hamas-Izz al-Din al-Qassem”’; the latter name appears in the contested measures. ( 10 )

17. By the contested measures, the Council, further to the review provided for in Article 1(6) of Common Position commune 2001/931, kept Hamas’ name on the contested list. ( 11 )

18. The statement of reasons for those measures state the following: – the Council has verified that the competent authorities as referred to in Article 1(4) of Common Position 2001/931 had taken decisions with regard to all persons, groups and entities on the list at issue to the effect that they have been involved in terrorist acts within the meaning of Article 1(2) and (3) of that common position, and also concluded that those persons, groups and entities should continue to be subject to the restrictive measures; ( 12 ) – the Council has provided all the persons, groups and entities with statements of reasons explaining why there were entered into the list at issue, where practically possible; ( 13 ) – by way of a notice published in the Official Journal of the European Union, the Council informed the persons, groups and entities on the list at issue that it had decided to keep them thereon. The Council also informed the persons, groups and entities concerned that it was possible to request a statement of the Council’s reasons for entering them onto that list where such a statement had not already been communicated to them; ( 14 ) – when reviewing the list at issue, the Council took into account the observations submitted to it by those concerned as well as the updated information received from the competent national authorities on the status of listed individuals and entities at the national level. ( 15 )

19. With regard to Hamas’ inclusion on the list at issue, the statements of reasons for the contested measures (‘the statements of reasons’) mention, on the one hand, a decision of 29 March 2001 of the Secretary of State for the Home Department (United Kingdom) ( 16 ) and, on the other hand, three decisions adopted by the authorities of the United States of America in the years 1995, 1997 and 2001 (‘the US authorities’ decisions’). ( 17 )

20. In the main section of the statements of reasons, after observing that those national decisions constituted decisions of competent authorities within the meaning of Article 1(4) of Common Position 2001/931 and that they were still in force, the Council concluded that each of those decisions provided sufficient grounds for Hamas’ inclusion on the list at issue and stated that the reasons that justified its entry on that list remained valid and that its name should therefore be kept on the list.

21. In the annexes to the statements of reasons, the Council provided a description of the national laws under which the national decisions were adopted, a presentation of the concepts of terrorism contained in those laws, a description of the review procedures for those decisions, a description of the facts on the basis of which the national authorities had taken their decisions and the finding that those facts constituted acts of terrorism within the meaning of Article 1(3) of Common Position 2001/931.

22. The contested measures and the statements of reasons were adopted by the Council as part of a written procedure within the meaning of Article 12(1) of that institution’s Rules of Procedure.

IV. The procedure before the General Court and the judgment under appeal

23. By document lodged at the Registry of the General Court on 17 May 2018, Hamas brought an action based on Article 263 TFEU and seeking the annulment of Decision 2018/475 and of Implementing Regulation 2018/458, in so far as they concern it. Following the repeal and replacement of those acts by Decision 2018/1084 and Implementing Regulation 2018/1071, Hamas amended the initial form of order sought by it such that is action also seeks the annulment of the latter acts, in so far as they concern it.

24. In support of its action, Hamas relied on seven pleas in law alleging, first, infringement of Article 1(4) of Common Position 2001/931; second, errors as to the accuracy of the facts; third, the mischaracterisation of Hamas as a terrorist organisation; fourth, infringement of the principle of non-interference; fifth, failure to take sufficient account of the development of the situation owing to the passage of time; sixth, infringement of the obligation to state reasons; and seventh, infringement of the principle of respect for the rights of defence and the right to effective judicial protection. In reply to a question put by the General Court as part of a measure of organisation of procedure, Hamas raised an eighth plea in law, alleging the failure to authenticate the statements of reasons.

25. With regard to the first to seventh pleas in law, the General Court took the view, first, that the statement of reasons relating to the US authorities’ decisions was insufficient, and that those decisions could not therefore serve as a basis for the contested measures. Next, it proceeded to examine the action, confining its assessment of those measures in so far as they were based on the 2001 decision of the Secretary of State for the Home Department. ( 18 ) Following that examination, the General Court rejected the pleas in question as unfounded in so far as those measures were based on the latter decision. ( 19 )

26. As for the eighth plea in law, after declaring it admissible as a plea concerning a matter of public policy, ( 20 ) the General Court noted that the statements of reasons for the contested measures had not been signed by the President of the Council and its Secretary-General even though they appeared in documents separate from those measures and, relying inter alia on the case-law established in the judgment of 15 June 1994, Commission v BASF and Others, ( 21 ) found that those measures had been adopted contrary to the second subparagraph of Article 297(2) TFEU and that the breach of that essential procedural requirement had to entail their annulment. ( 22 ) Accordingly, the General Court upheld the eighth plea in law and annulled the measures in so far as they concerned Hamas.

V. Procedure before the Court and forms of order sought by the parties

27. On 14 November 2019, the Council brought an appeal against the judgment under appeal and, on 15 March 2021, it replied to the questions for a written response put by the Court. It claims that the Court should set aside the judgment under appeal, dismiss the action brought at first instance and order Hamas to pay the costs of the two sets of proceedings.

28. Hamas contends that the Court should dismiss the appeal and order the Council to pay the costs of the two sets of proceedings.

VI. Analysis

29. In support of its appeal, the Council relies on two ground of appeal, alleging, first, that the General Court erred in law in the assessment of the eighth plea of the action, alleging the failure to authenticate the statements of reasons for the contested measures, and, second, that the General Court erred in law in finding that the US authorities’ decisions did not constitute a sufficient basis for including Hamas on the list at issue.

A. The first ground of appeal, concerning the failure to authenticate the statements of reasons for the contested measures

30. The first ground of appeal alleges an error in law in the assessment of the eighth plea of the action concerning the failure to authenticate the statements of reasons for the contested measures.

31. In the present case, it is established that the Council, in accordance with an established practice when adopting restrictive measures within the framework of the CFSP, first, published the contested measures in the L series of the Official Journal of the European Union, and, second, notified those acts and the statements of reasons related to them to Hamas, as well as to the other persons and entities concerned. ( 23 ) It is also established that, although those acts bore the signature of the President and the Secretary-General of the Council, the text of those statements of reasons, which were sent to Hamas by mail together with the acts, were unsigned. ( 24 )

32. In the judgment under appeal, having noted that the statements of reasons for the contested measures had not been signed by the President of the Council and its Secretary-General even though they appeared in documents separate from those acts, the General Court found that the acts had been adopted contrary to the second subparagraph of Article 297(2) TFEU and to Article 15 of the Council’s Rules of Procedure, and that the breach of that essential procedural requirement had to entail the annulment of those acts. ( 25 )

33. In arriving at that conclusion, the General Court’s line of reasoning was, essentially, as follows: – the second subparagraph of Article 297(2) TFEU provides that non-legislative acts adopted in the form of regulations, directives or decisions, when the latter do not specify to whom they are addressed, are to be signed by the President of the institution which adopted them, and Article 15 of the Council’s Rules of Procedures establishes that the text of the acts adopted by that institution is to be signed by the President and by the Secretary-General; ( 26 ) – as is apparent from the judgment in Commission v BASF and Others, the authentication of acts by means of their signature is intended to guarantee legal certainty and is an essential procedural requirement breach of which gives rise to an action for annulment; ( 27 ) – since, pursuant to the second paragraph of Article 296 TFEU, acts adopted by the Council must state the reasons on which they are based and, in accordance with the judgment in Commission v BASF and Others, the operative part of, and the statement of reasons for, a decision constitute an indivisible whole, it follows that, where the act and the statements of reasons, which supplement the reasoning for those acts, appear in separate documents, both the act and the statements of reasons must be authenticated. ( 28 )

34. In addition, in response to the Council’s arguments, the General Court provided the following clarifications: – although, according to the case-law of the Court, the publication in the Official Journal of the European Union of the fund-freezing measures may be limited to the operative part and a general statement of reasons, that ‘tolerance’ does not affect the obligation to sign the acts in accordance with the second subparagraph of Article 297(2) TFEU and with Article 15 of the Council’s Rules of Procedure; ( 29 ) – the Council could not replace the authentication of the contested measures by means of their signature with the ‘description of the procedure followed within the Council for the purpose of adopting those acts’, as provided for in Article 12(1) of its Rules of Procedure; ( 30 ) – the failure to authenticate the statements of reasons for the contested measures constitutes a breach of an essential procedural requirement which entails the annulment of those measures even though, unlike the factual circumstances which gave rise to the judgment in Commission v BASF and Others, it is not in dispute that the text of those statements of reasons notified to Hamas is identical to the text adopted by the Council; ( 31 ) – that breach of an essential procedural requirement must, on its own, entail the annulment of the contested measures. ( 32 )

35. In its appeal, the Council argues, first, that it signed the contested measures; second, that it separated the statements of reasons from those measures and sent an extract of the document, containing the part of those statements of reasons relating to Hamas, to Hamas alone, in accordance with the case-law of the General Court; ( 33 ) third, that, in the case which gave rise to the judgment in Commission v BASF and Others, the college of Commissioners had adopted a decision which did not correspond to certain language versions or to the versions published and notified to the entities concerned, whereas, in the present case, first, it has not been demonstrated, or even argued, that the statements of reasons sent to Hamas were different from those adopted by the Council and, second, the text of the contested measures and that of the statements of reasons were adopted under the same procedure, as provided for in Article 12(1) of the Council’s Rules of Procedure; fourth, that the document notified to Hamas contained an electronic signature, stamp and time stamp; fifth, that it does not follow from the judgment in Commission v BASF and Others that the document containing the statements of reasons must be signed separately by the President and the Secretary-General of the Council; sixth, that the letters sent to Hamas were stamped by the Secretary-General of the Council, even though they did not mention the specific sender as a precautionary measure vis-à-vis the staff of the General Secretariat, since such letters are addressed to entities and persons involved in acts of terrorism. In addition, in its reply to the questions for a written response put by the Court, the Council draws a distinction between, on the one hand, the authentication of an act, which means that it is enforceable and stems, as the case may be, from its publication or its notification, and, on the other hand, the obligation to sign an act, which has a different purpose, namely to guarantee the stability of the text adopted and to determine the intention of the institution concerned.

36. In response, Hamas contends, first, that the statement of reasons for an act, given that it is inseparable from the operative part of that act, must be authenticated where it is separated from that operative part; second, that the fact that the Council separates individual statements of reasons from the operative part of the contested acts does not justify derogation from the rules on authentication; third, that the conduct of the procedure within the Council and the consistency between the statements of reasons adopted by the Council and those notified to Hamas do not make up for the failure to authenticate; fourth, that only a handwritten signature, and not an electronic one, can authenticate the acts adopted by the Council, especially since the statements of reasons were sent to Hamas by post; fifth, the statements of reasons must be authenticated in the light of the principle of the indivisibility of the grounds for, and the operative part of, an act and given the interest of the persons concerned in being assured that the act was indeed adopted by the institution in question and that it reflects that institution’s intention; sixth, the fact that the letters of notification were stamped by the General Secretariat of the Council is not mentioned in the judgment under appeal and is therefore irrelevant in the context of the present appeal.

37. As I will explain in the following points, it is my view that the General Court’s reasoning is flawed in several respects: – first of all, the first subparagraph of Article 297(2) TFEU does not apply in relation to the statements of reasons for entering and keeping on the list persons, groups or entities concerned by individual restrictive measures; – next, neither the first subparagraph of Article 297(2) TFEU, even assuming it were applicable in the present case, nor Article 15 of the Council’s Rules of Procedure lays down the obligation to sign statements of reasons where the acts to which are inseparably connected have been signed; – finally, nor is the separate signature of the statements of reasons a requirement for the purposes of Article 296 TFEU, without prejudice to the principle, mentioned by the General Court, of the inseparability of the operative part of, and the statement of reasons for, an act.

38. However, before beginning my analysis, I will examine, as preliminary point, the relationship between the obligation to sign and the obligation to authenticate acts of the Council, in response to the latter’s argument that the obligation to sign does not fall within the scope of the obligation to authenticate the contested measures.

1. The relationship between the obligation to sign and the obligation to authenticate acts of the Council

39. The eighth plea in law of the action, which was upheld by the General Court, was based on a ‘failure to authenticate’ the statements of reasons, due to the fact that they were not signed. ( 34 ) The General Court therefore equated the failure to sign the statements of reasons with their lack of authentication.

40. Accordingly, the question of whether the first subparagraph of Article 297(2) TFEU or Article 15 of the Council’s Rules of Procedure lays down the obligation that statements of reasons are to be signed separately where the acts with which they are inseparably connected have been signed underlies the question of whether the signing of the contested measures also entails the authentication of those measures, as well as of any related document adopted jointly by the Council, like the statements of reasons, having regard to the established practice of the Council and the other institutions of the European Union of not signing separately the annexes related to acts adopted by them.

41. In reply to the questions for a written response put by the Court, the Council draws a distinction between, on the one hand, the authentication of an act, which means that it is enforceable and stems, as the case may be, from its publication or its notification, and, on the other hand, the signature of an act, which has a different purpose, namely that of ensuring the stability of the text adopted and determining the intention of the institution.

42. I cannot endorse that interpretation. As the Council itself states in its written observations, the purpose of the obligation to sign is ‘to ensure the stability of the text adopted and to determine the intention of the institution’, adding, inter alia, that the signature of an act confirms that that act ‘has been adopted in the due and proper form and that its content faithfully reflects what has been decided’. However, it appears to me that those characteristics are specific to the authentication of an act of the Council, provided that they seek to guarantee that that act has indeed been adopted by the institution concerned.

43. In addition, although the wording of Article 15 of the Council’s Rules of Procedure merely mentions an obligation to sign the acts of the Council, without further clarification, it does, however, seem to me that that obligation serves merely to guarantee that the act is being adopted on behalf of the institution represented by the signatories and that it is therefore ‘authentic’.

44. In this regard, I note that Article 11 and Article 18 of the Rules of Procedure of the European Commission ( 35 ) state, respectively and explicitly, that the approved minutes ‘shall be authenticated by the signatures of the President and the Secretary-General’ and that the instruments adopted by written procedure ‘shall be authenticated by the signature of the Secretary-General on the last page of the day note’. ( 36 ) It is thus clear from those articles that the objective of the obligation to sign the acts adopted by the Commission is to authenticate those acts.

45. In turn, Article 79 of the Rules of Procedure of the European Parliament, ( 37 ) which is entitled ‘Signing and publication of adopted acts’, provides in its first paragraph that, ‘after finalisation of the text adopted … and once it has been verified that all the procedures have been duly completed, acts adopted in accordance with the ordinary legislative procedure shall be signed by the President and the Secretary-General’. Although that provision does not mention authentication, it seems clear to me that the objective of signing an act is primarily to guarantee observance of the procedure for the adoption of that act, and therefore the authenticity of the act adopted.

46. I am therefore of the view that the main objective of the obligation to sign the acts of the institutions of the European Union is to authenticate them.

47. Conversely, it is my view that the publication or, as the case may be, the notification of the acts, which the Council equates with their authentication, has a different objective, namely to guarantee the enforceability of those acts in respect of third parties, and therefore to enable, depending on the circumstances, their entry into force or their application.

48. In my opinion, the General Court did not therefore err in law when it examined the scope of the obligation to sign acts of the Council in the light of the obligation to authenticate such acts.

2. The scope of the obligation to sign for the purposes of the first subparagraph of Article 297(2) TFEU as regards statements of reasons concerning restrictive measures

49. Pursuant to the first subparagraph of Article 297(2) TFEU, non-legislative acts adopted in the form, in particular, of regulations and directives, such as the contested measures, as well as decisions which do not specify to whom they are addressed are to be signed by the President of the institution which adopted them, whereas, under the third subparagraph of that provision, other directives, and decisions which specify to whom they are addressed, are to be notified to those to whom they are addressed and are to take effect upon such notification.

50. In that connection, mention must be made of the particular nature of acts of the Council imposing restrictive measures adopted within the framework of the CFSP, such as the contested measures, which at the same time resemble both measures of general application, in that they impose on a category of addressees determined in a general and abstract manner a prohibition on, inter alia, making available funds and economic resources to persons and entities named in the lists contained in their annexes, and also a bundle of individual decisions affecting those persons and entities. ( 38 )

51. Furthermore, it is the individual nature of those measures which, in accordance with the second paragraph of Article 275 TFEU and the fourth paragraph of Article 263 TFEU, permits access to the Courts of the European Union, ( 39 ) since the Court does not in principle have jurisdiction, pursuant to the first subparagraph of Article 275 TFEU, with respect to the provisions relating to the CFSP or with respect to acts adopted on the basis of those provisions.

52. Moreover, it is likewise on the basis of the individual nature of the acts in question, as well as the sensitive nature of the information to which the act relates, that case-law has established that a detailed publication of the complaints put forward against the persons concerned might not only conflict with the overriding considerations of public interest, 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. ( 40 )

53. Accordingly, unlike the general listing criteria, which set out the reasons why the Council is adopting restrictive measures in the context of the case in question and come under the general nature of the act and the reasons stated for it, the specific grounds underlying the listing of each person, group or entity concerned by those measures come under the individual nature of that act and do not necessarily have to be made public by the Council. ( 41 )

54. In the present case, it must be stated that, in accordance with the case-law cited in point 50 of this Opinion, the contested measures, all of which are measures of general application, are also ‘individual decisions’ affecting Hamas, in so far as it is concerned by them.

55. Accordingly, for the purpose of applying Article 297(2) TFEU, a distinction must be drawn between, on the one hand, the elements of the contested measures which fall within the scope of their nature as measures of general application, and which thus trigger the obligation to sign laid down in the first subparagraph of that provision, and, on the other hand, the elements of those measures which come under their nature as individual decisions, and which trigger, for their part, the notification obligation, in accordance with the third subparagraph of the provision.

56. In that regard, although the contested measures themselves are of general application and had to be signed, pursuant to the first subparagraph of Article 297(2) TFEU, and published, within the meaning of the second subparagraph of that provision, it seems clear to me that the statements of reasons, which concern the individual grounds for listing the persons concerned by the restrictive measures (here: Hamas), do not come under the general nature of those measures but rather their individual nature. Furthermore, the individual and confidential nature of those grounds justifies, in accordance with the case-law cited in point 52 of this Opinion, the non-publication of those individual grounds in the Official Journal of the European Union.

57. It therefore appears to me that the statements of reasons for the contested measures do not fall within the scope of the first subparagraph of Article 297(2) TFEU, but rather, like any decision which specifies to whom it is addressed, that of the third subparagraph of that provision, which makes no mention of the obligation to sign and makes the effectiveness of such a decision contingent on its notification.

58. It follows that the General Court erred in law when it held that, in the circumstances of the present case, Article 297(2) TFEU required that the statements of reasons for the contested measures be signed.

59. In any case, as I will explain in points 60 to 67 of this Opinion, even if Article 297(2) TFEU were held to be applicable in the present case, I take the view that that provision does not entail, in the present case, the obligation to sign the statements of reasons for the contested measures separately from those measures.

3. The scope of the obligation to sign within the meaning of the first subparagraph of Article 297(2) TFEU or of Article 15 of the Council’s Rules of Procedure in relation to the statements of reasons connected with the contested measures

60. In the first place, it should be recalled that the first subparagraph of Article 297(2) TFEU provides that ‘non-legislative acts’ adopted by the Council are to be signed by its President. In almost identical terms, Article 15 of the Council’s Rules of Procedure provides that ‘the text of the acts’ adopted by the Council is to be signed by the President in office at the time of their adoption and by the Secretary-General.

61. Therefore, in accordance with their wording, the abovementioned provisions require the signature of (the text of) the acts adopted by the Council and do not necessarily extend that obligation to the annexes to those acts.

62. In the second place, I would note that the public-policy nature of the plea alleging infringement of the rules of authentication of acts of the European Union can be explained primarily by reasons of legal certainty and the inherent needs of judicial review. ( 42 ) Indeed, in the judgment in Commission v BASF and Others, upon which the General Court based its reasoning, ( 43 ) the Court held that the authentication of acts of the Commission by the signatures of the President and the Executive Secretary, as provided for in Article 12 of the Rules of Procedure of that institution in force at the time of the contested decision, was intended to guarantee legal certainty, which requires that third parties have a means of verifying that the acts notified or published correspond to the acts adopted, and constituted an essential procedural requirement breach of which gave rise to an action for annulment. ( 44 )

63. In the present case, first, the Council has shown, without being contradicted, that the statements of reasons were inseparably attached to the contested measures in the course of the procedure for approval of those acts, as provided for in Article 12 of its Rules of Procedure, and that any amendment of the documents adopted in that context was made impossible by the use of information technology, such as the electronic signature, electronic stamp and electronic time stamp on those documents.

64. Second, Hamas has not shown, or even argued, that the text of the statements of reasons as adopted by the Council did not correspond to that which had been communicated to it by the Council, and does not plead any other evidence or fact such as to displace the presumption of validity which applies to acts of the European Union institutions. ( 45 ) For its part, in the judgment under appeal, the General Court simply found, in essence, that that aspect was irrelevant since the contested measures and their statements of reasons were contained in separate documents. ( 46 )

65. In my opinion, if the signature of an act must be regarded as a means of authenticating the intention of the author of that act and of the institution which he represents to adopt that act, ( 47 ) it appears to me that it is shown in the present case that the President and the Secretary-General of the Council, when they signed the contested measures, demonstrated the intention of that institution to adopt the restrictive measures at issue against Hamas, including keeping it on the list at issue, having regard to the reasons for so doing, as explained in the statements of reasons for those acts. Moreover, the same acts mentioned the fact that the Council had provided all the persons, groups and entities with statements of reasons explaining why they were entered into the list at issue, where practically possible, ( 48 ) and the statements of reasons were inseparably attached to those acts during the procedure by which they were adopted. ( 49 )

66. I am therefore of the view that the General Court erred in law when it held that, in the circumstances of the present case, Article 15 of the Council’s Rules of Procedure required the President and the Secretary-General of the Council to sign the statements of reasons for the contested measures separately from those measures for the purpose of authenticating them.

67. The same line of reasoning applies, in my view, as regards the obligation to sign laid down in the first subparagraph of Article 297(2) TFEU if, contrary to the conclusion which I have reached in points 49 to 59 of this Opinion, the Court were to consider that provision to be applicable in the present case. ( 50 )

4. The scope of the obligation to sign the statements of reasons for acts of the Council in the light of the obligation to state reasons within the meaning of the second paragraph of Article 296 TFEU and of the principle that the operative part of, and the reasons for, a decision constitute an indivisible whole

68. Under the second paragraph of Article 296 TFEU, legal acts must state the reasons on which they are based. In addition, according to the case-law to which the General Court referred in the judgment under appeal, the operative part of, and the reasons for, a decision constitute an indivisible whole. ( 51 )

69. The question therefore arises whether, as the General Court held in the judgment under appeal, by virtue of the inseparability of the operative part of, and the reasoning behind, the contested acts, the statements of reasons for those acts – in so far as they supplemented the reasoning for them and appeared in separate documents from those reasons – had to be signed by the President and the Secretary-General of the Council.

70. However, first, it is my view, in accordance with the conclusion set out in point 65 of this Opinion, that the signature of the contested measures is also deemed to constitute the signature, and therefore the authentication, of the corresponding statements of reasons, which is enough to call into question the General Court’s conclusion from the outset.

71. Without prejudice to the principle that the operative part of, and the reasons for, a decision constitute an indivisible whole, it appears to me that, when the President and the Secretary-General of the Council signed the contested measures, they demonstrated the intention of that institution to adopt both those acts and the documents, such as the statements of reasons, which were inseparably attached to those acts during the procedure by which the acts were adopted and, as I have observed in point 65 of this Opinion, were mentioned in those same acts.

72. Second, in any event, it seems to me that, in accordance with the case-law cited in point 50 of this Opinion, the statements of reasons for the contested measures specifically concerning Hamas constitute individual decisions affecting Hamas and do not come under the nature of measures of general application of those acts, within the meaning of the first paragraph of Article 297(2) TFEU. That finding is confirmed by the fact that the individual reasons for listing the persons and entities concerned by restrictive measures are not published but rather communicated exclusively to those persons and entities, in line with the case-law cited in point 52 of this Opinion. Those individual reasons are therefore not a necessary supplement to the statement of reasons for those acts as measures of general application.

73. In that regard, I note that, in paragraph 67 of the judgment in Commission v BASF and Others, upon which the General Court relied in the judgment under appeal, the Court concluded that the operative part of, and the reasons for, a decision constituted an indivisible whole merely in order to find that, in accordance with the principle of collegiate responsibility governing the functioning of that institution, the operative part and the statement of reasons must be adopted by the college of Commissioners. The question raised in that case was therefore the lack of correspondence between, on the one hand, the text of a decision adopted by the college of Commissioners and, on the other hand, the text of the same decision as published and notified to certain addressees. ( 52 )

74. By contrast, the situation is dramatically different in the present case, where, in accordance with the case-law cited in point 50 of this Opinion, the acts at issue constitute both measures of general application, which contain a statement of reasons consistent with their nature, and individual decisions with their specific reasoning. In addition, as I noted in point 64 of this Opinion, the correspondence of the text of the statements of reasons communicated to Hamas and that adopted by the Council is not even in dispute.

75. Accordingly, the General Court erred in law when it held that the second paragraph of Article 296 TFEU, read in the light of the principle that the operative part of, and the reasons for, a decision constitute an indivisible whole, required the Council, in the circumstances of the present case, to sign the statements of reasons for the contested measures separately as the necessary supplement to the reasoning for those measures.

5. Conclusion

76. In the light of all of the foregoing, I take the view that the General Court erred in law when it found that that the Council had infringed an essential procedural requirement because the statements of reasons relating to the contested measures had not been authenticated by the signatures of the President and the Secretary-General of that decision even though they were contained in separate documents. ( 53 )

77. Neither the first subparagraph of Article 297(2) TFEU, nor Article 15 of the Council’s Rules of Procedure nor even the second paragraph of Article 296 TFEU, interpreted in the light of the principle that the operative part of, and the reasons for, a decision constitute an indivisible whole, required that, in the circumstances of the present case, the statements of reasons for the contested measures were specifically signed by the President and the Secretary-General of the Council.

78. I therefore propose that the first ground of appeal be upheld and, accordingly, the judgment under appeal set aside.

B. The second ground of appeal, alleging errors in the assessment of the US authorities’ decisions as a basis for the contested measures

79. By the second ground of its appeal, the Council claims that the General Court erred in law by finding that the US authorities’ decisions did not constitute a sufficient basis for entering Hamas on the list at issue.

80. I note that, under Article 169(1) of the Rules of Procedure of the Court of Justice, an appeal is to seek to have set aside, in whole or in part, the decision of the General Court.

81. In the present case, by the second ground of its appeal, the Council seeks not to have the operative part of the judgment under appeal set aside, not even in part, but merely the amendment of some of the grounds of that judgment concerning the first to seventh pleas in law. ( 54 )

82. As far as concerns the application for annulment of the contested measures, the Council was successful at first instance in relation to the first to seventh pleas in law, and is seeking merely a replacement of grounds in relation to those pleas which were dismissed by the General Court. As is clear from the actual wording of the appeal, the Council merely expresses ‘its disagreement with the General Court’s reasoning’ and does not seek to have the judgment under appeal set aside, but rather claims that the General Court erred in law ‘in the reasoning expounded by it’ in that judgment.

83. Furthermore, the Council does not put forward any argument in support of the admissibility of the second ground of its appeal. It asks the Court to rule on whether the US authorities’ decisions constitute a sufficient basis for the contested measures, in the light of the impact of that question on pending cases and of the rulings given by the General Court to that effect in other cases.

84. In this regard, I would recall that the force of res judicata extends only to the grounds of a judgment which constitute the necessary support of its operative part and are, therefore, inseparable from it. ( 55 ) Therefore, where a European Union Court annuls a decision, the grounds on which that court has rejected certain arguments put forward by the parties do not have the force of res judicata. ( 56 )

85. Accordingly, the Council’s arguments are not sufficient to establish the admissibility of the ground of appeal in question under Article 169(1) of the Rules of Procedure.

86. It is therefore my view that the second ground of appeal must be dismissed as inadmissible.

VII. The proceedings before the General Court

87. Pursuant to Article 61 of the Statute of the Court of Justice of the European Union, where the Court quashes the decision of the General Court, it may itself give final judgment in the matter, where the state of the proceedings so permits.

88. I consider that this is the case here.

89. With regard to the eighth plea of the action, I propose that it be rejected on the basis of points 30 to 78 of this Opinion.

90. With regard to the first to seventh pleas of the action, it must be stated that they were rejected by the General Court and that, therefore, in the absence of a cross-appeal brought by Hamas against the rejection of the pleas concerned, the setting aside of the judgment under appeal does not affect that judgment inasmuch as the General Court rejected those pleas. ( 57 )

91. In those circumstances, I propose that the action brought by Hamas before the General Court be dismissed.

VIII. Costs

92. Under Article 184(2) of its Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is make a decision as to the costs.

93. Article 138(1) of the Rules of Procedure, which is applicable to appeal proceedings by virtue of Article 184(1) thereof, provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

94. Since Hamas has been unsuccessful in its pleadings, I propose that it be ordered to pay, in addition to its own costs, those of the Council.

IX. Conclusion

95. In the light of the foregoing considerations, I propose that the Court: – set aside the judgment of the General Court of the European Union of 4 September 2019, Hamas v Council (T‑308/18, EU:T:2019:557); – dismiss the action brought by Hamas before the General Court; – order Hamas to pay, in addition to its own costs, those of the Council of the European Union.

( 1 ) Original language: French.

( 2 ) T‑308/18, EU:T:2019:557; ‘the judgment under appeal’.

( 3 ) OJ 2018 L 79, p. 26.

( 4 ) OJ 2018 L 79, p. 7.

( 5 ) OJ 2018 L 194, p. 144.

( 6 ) OJ 2018 L 194, p. 23.

( 7 ) OJ 2009 L 325, p. 35.

( 8 ) Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93).

( 9 ) That list was established by Council Decision 927/2001/EC of 27 December 2001 establishing the list provided for in Article 2(3) of Council Regulation No 2580/2001 (OJ 2001 L 344, p. 83) and has been regularly updated by subsequent acts of the Council and in particular by the contested measures.

( 10 ) See the judgment under appeal, paragraphs 10 and 26.

( 11 ) This list is reproduced identically in the annexes to the four contested measures.

( 12 ) See recital 5 of Decision 2018/475 and of Regulation 2018/468 and the same recital of Decision 2018/1084 and of Regulation 2018/1071.

( 13 ) See recital 2 of Regulation 2018/468 and of Regulation 2018/1071.

( 14 ) See recital 3 of Regulation 2018/468 and of Regulation 2018/1071.

( 15 ) See recital 4 of Regulation 2018/468 and of Regulation 2018/1071.

( 16 ) Annex A to the statements of reasons.

( 17 ) Annex B to the statements of reasons.

( 18 ) See the judgment under appeal, paragraphs 76 and 77.

( 19 ) See the judgment under appeal, paragraphs 78 to 261.

( 20 ) See the judgment under appeal, paragraphs 266 to 269.

( 21 ) C‑137/92 P, EU:C:1994:247; ‘the judgment in Commission v BASF and Others’.

( 22 ) See the judgment under appeal, paragraphs 270 to 305.

( 23 ) The Council notifies such acts directly, if it knows the address of the persons and entities concerned, or, alternatively, by the publication of a notice in the C series of the Official Journal of the European Union. In the present case, as is clear from paragraphs 11 and 27 of the judgment under appeal, the Council notified the statements of reasons justifying Hamas’ retention on the list at issue to Hamas’ lawyer by letters of 22 March and 31 July 2018.

( 24 ) See the judgment under appeal, paragraph 278.

( 25 ) See the judgment under appeal, paragraphs 270 to 305.

( 26 ) See the judgment under appeal, paragraphs 270 and 271.

( 27 ) See the judgment under appeal, paragraphs 272 to 277.

( 28 ) See the judgment under appeal, paragraphs 281 and 282.

( 29 ) See the judgment under appeal, paragraphs 285 to 288.

( 30 ) See the judgment under appeal, paragraphs 289 to 297.

( 31 ) See the judgment under appeal, paragraphs 298 to 302.

( 32 ) See the judgment under appeal, paragraphs 303 and 304.

( 33 ) The Council refers to the judgment of 12 December 2006, Organisation des Modjahedines du peuple d’Iran v Council (T‑228/02, EU:T:2006:384, paragraph 147).

( 34 ) See the judgment under appeal, paragraphs 262 and 263.

( 35 ) OJ 2000 L 308, p. 26.

( 36 ) Emphasis added.

( 37 ) OJ 2019 L 302, p. 1.

( 38 ) See judgment of 23 April 2013, Gbagbo and Others v Council (C‑478/11 P to C‑482/11 P, EU:C:2013:258, paragraph 56 and the case-law cited).

( 39 ) See judgment of 23 April 2013, Gbagbo and Others v Council (C‑478/11 P to C‑482/11 P, EU:C:2013:258, paragraph 57).

( 40 ) See judgment of 12 December 2006, Organisation des Modjahedines du peuple d’Iran v Council (T‑228/02, EU:T:2006:384, paragraph 147).

( 41 ) I note that, as part of its practice, the Council takes care to publish the individual grounds for listing in so far as that is necessary to demonstrate that the listing of a person meets the general listing criteria set out in the acts imposing restrictive measures, whilst communicating more detailed information regarding the listing exclusively to the person concerned. See, by way of example, Council Decision 2014/119/CFSP of 5 March 2014 (OJ 2014 L 66, p. 26) and Regulation (EU) No 208/2014 of the same day (OJ 2014 L 66, p. 1) concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, as amended and extended until that date: in the annexes to those acts, the Council briefly states the ground for listing each of the people concerned by those measures (in particular, the fact that there are ongoing criminal proceedings connected with the embezzlement of funds) and subsequently communicates, solely to the person concerned and at his or her request, the detailed grounds for that listing (in particular, the subject matter of the criminal proceedings concerning that person). See, inter alia, judgment of 15 September 2016, Yanukovych v Council (T‑346/14, EU:T:2016:497, paragraphs 8 to 12), upheld on appeal by the judgment of 19 October 2017, Yanukovych v Council (C‑598/16 P, not published, EU:C:2017:786).

( 42 ) See, in this regard, Clausen, F., Les moyens d’ordre public devant la Cour de justice de l’Union européenne, Bruylant, Brussels, 2018, p. 222.

( 43 ) See the judgment under appeal, paragraphs 272 to 277.

( 44 ) See judgment in Commission v BASF and Others, paragraphs 75 and 76.

( 45 ) In accordance with settled case-law of the Court, the acts of the European Union institutions, bodies, offices and agencies are presumed to be lawful, which implies that they produce legal effects until such time as they are withdrawn, annulled in an action for annulment or declared invalid following a reference for a preliminary ruling or a plea of illegality (judgment of 14 June 2012, CIVAD, C‑533/10, EU:C:2012:347, paragraph 39 and the case-law cited). Furthermore, in a case in which the applicant, relying on the judgment in Commission v BASF and Others, disputed that the decision in question was properly adopted and authenticated and that the copy notified to it was the same as the original, the General Court dismissed those arguments on the ground that the applicant did not plead any evidence or specific fact such as to displace the presumption of validity which applies to Community acts, either as to the adoption and authentication of the contested decision or as to the conformity of the copy notified to it within the original text of that decision (see judgment of 7 July 1994, Dunlop Slazenger v Commission, T‑43/92, EU:T:1994:79, paragraph 24).

( 46 ) See the judgment under appeal, paragraph 301.

( 47 ) See points 42 to 46 of this Opinion.

( 48 ) See recital 2 of Regulation 2018/468 and of Regulation 2018/1071.

( 49 ) Case-law has adopted a similar approach in relation to the first paragraph of Article 16 of the Rules of Procedure of the Commission of 17 February 1993 (OJ 1993 L 230, p. 16), which, like those in force, provided that instruments adopted, which were annexed to the minutes of the meeting at which they had been adopted, were authenticated by the signatures of the President and the Secretary-General on the first page of the minutes. According to that case-law, the rules of authentication laid down in that provision constitute a sufficient guarantee for determining, in case of dispute, whether texts notified or published correspond perfectly with the text adopted by the college of Commissioners and thus with the intention of their author. Since that text is annexed to the minutes, and the first page of the minutes is signed by the President and the Secretary-General, there is a link between those minutes and the documents which they cover which allows certainty as to the exact content and form of the college’s decision. In that regard, in the absence of a finding by the European Union judicature that an authority has not complied with its usual practice, the latter must be presumed to have acted in accordance with the applicable legislation (see, inter alia, to that effect, judgment of 20 April 1999, Limburgse Vinyl Maatschappij and Others v Commission, T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94, EU:T:1999:80, paragraphs 302 to 304, as confirmed, in those respects, by the judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582).

( 50 ) Furthermore, I wonder if, in circumstances such as those of the present case, the breach by the Council of the obligation to authenticate the contested measures would have had to entailed the annulment of those acts. It is true that the Court has established that the authentication of acts (in particular that referred to in the Rules of Procedure of the Commission) constitutes an essential procedural requirement within the meaning of Article 263(1) TFEU breach of which gives rise to an action for annulment (see judgment in Commission v BASF and Others, paragraph 76), and that it is the mere failure to authenticate an act which constitutes the infringement of an essential procedural requirement and it is not necessary also to establish that the act is vitiated by some other defect or that the lack of authentication resulted in harm to the person relying on it (see judgments of 6 April 2000, Commission v ICI, C‑286/95 P, EU:C:2000:188, paragraph 42, and Commission v Solvay, C‑287/95 P and C‑288/95 P, EU:C:2000:189, paragraph 46). However, the cases which gave rise to those judgments were characterised by the fact that there was, at the very least, a risk that the text of the act notified to those to whom it was addressed would not be identical to the text adopted by the institution concerned (see judgments of 6 April 2000, Commission v ICI, C‑286/95 P, EU:C:2000:188, paragraphs 61 and 62, and Commission v Solvay, C‑287/95 P and C‑288/95 P, EU:C:2000:189, paragraphs 66 and 67). Furthermore, that risk materialised in the case which gave rise to the judgment in Commission v BASF and Others, since the General Court, and then the Court of Justice, found there to be differences, first, between certain language versions of the decision adopted by the college of Commissioners and, second, between the text of the decision adopted and the text of the decision published in the Official Journal (see judgment in Commission v BASF and Others, paragraph 8). Accordingly, in all those cases, the existence of doubts as to the authenticity of the decision concerned inevitably undermined the principle of legal certainty (see, to that effect, judgment in Commission v BASF and Others, paragraph 75). Moreover, the procedural requirements breach of which gives rise to a plea alleging infringement of essential procedural requirements are necessarily those which are intended to ensure protection for individuals (see, to that effect, judgment of 7 May 1991, Nakajima v Council, C‑69/89, EU:C:1991:186, paragraph 50). Although there can be no doubt that, in the majority of cases, the failure to authenticate an act may undermine the principle of legal certainty, because it places individuals in a situation of uncertainty as regards the correspondence between the texts notified to them or which concern them and the intention of their author, I wonder whether that conclusion should not be qualified in situations such as that in the present case where, unlike the situations referred to above, the authenticity of the statements of reasons for the contested measures is not even disputed. In such a situation, it appears paradoxical to me for a plea alleging a failure to authenticate an act (that is to say, a plea relating to the procedure which allows the act to be attributed to the institution issuing it) must be upheld where the authenticity of that act (that is to say, the fact that it is issued by that institution) has not been questioned by the parties or by the European Union judicature. Moreover, it seems to me that a more nuanced approach to that issue is consistent with the approach adopted by the courts of certain Member States: I refer, by way of example, to the judgment of the Symvoulio tis Epikrateias (Council of State, Greece) of 28 February 2003 (No 530/2003, EL:COS:2003:0228A530.99E4028, paragraph 4) and to the ‘Danthony’ case-law of the Conseil d’État (Council of State, France) (decision of 23 December 2011, Mr Claude Danthony and Others, No 335033, FR:CEASS:2011:335033.20111223), which essentially argue in favour of an approach under which a procedural defect is capable of rendering the decision taken unlawful only if it is liable to influence the meaning of the decision taken or it has denied the persons concerned a guarantee, but not where that procedural defect is relied upon in order to call into question a factual assessment that is uncontested by the interested parties.

( 51 ) See the judgment under appeal, paragraphs 281 to 283, which refer to the judgments in Commission v BASF and Others, paragraph 67, and of 18 January 2005, Confédération Nationale du Crédit Mutuel v Commission (T‑93/02, EU:T:2005:11, paragraph 124).

( 52 ) In the judgment in Commission v BASF and Others, the Court had found that the Commission breached a number of procedural requirements, finding, first, that the German-language version of the decision adopted by the college of Commissioners did not correspond to the other language versions and that nor did it correspond to the public version; second, that, in the decisions published in the Official Journal, a paragraph which did not appear in the decisions adopted by the college of Commissioners had been added; third, that in the version of the measures notified to the entities concerned, the operative part had been amended as compared with the text of the versions of the decision which had been submitted to the college (see judgment in Commission v BASF and Others, paragraph 8); and, fourth, that the college of Commissioners had adopted the contested decision only in its English-, German- and French-language versions (see judgment in Commission v BASF and Others, paragraph 10).

( 53 ) See the judgment under appeal, paragraphs 304 and 305.

( 54 ) See, to that effect, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa (C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 44).

( 55 ) See, to that effect, judgments of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa (C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 49), and of 15 May 2019, CJ v ECDC (C‑170/18 P, not published, EU:C:2019:410, paragraph 49 and the case-law cited).

( 56 ) See, to that effect, judgment of 15 May 2019, CJ v ECDC (C‑170/18 P, not published, EU:C:2019:410, paragraph 49 and the case-law cited).

( 57 ) See, to that effect, judgment of 4 March 2021, Commission v Fútbol Club Barcelona (C‑362/19 P, EU:C:2021:169, paragraphs 108 to 110), and the case-law cited in point 84 of this Opinion.