Joined Cases C-539/10 P and C-550/10 P

Stichting Al-Aqsa

v

Council of the European Union

and

Kingdom of the Netherlands

v

Stichting Al-Aqsa

‛Appeals — Common foreign and security policy — Combating terrorism — Restrictive measures against certain persons and entities — Freezing of assets — Common Position 2001/931/CFSP — Article 1(4) and (6) — Regulation (EC) No 2580/2001 — Article 2(3) — Inclusion of an organisation on the list of persons, groups and entities involved in terrorist acts and maintaining it on that list — Conditions — Decision of a competent authority — Repeal of a national measure — Actions for annulment — Admissibility of the appeal — Right to respect for property — Principle of proportionality — Article 253 EC — Obligation to state the reasons on which a decision is based’

Summary — Judgment of the Court (Third Chamber), 15 November 2012

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 of the right to property — Breach of principle of proportionality — No such breach

Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Decision to freeze funds — Repeal of the national decision to freeze funds — No impact on the freezing of funds laid down in a European Union regulation

See the text of the decision. (see paras 43-45)

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. (see para. 49)

Article 1(4) of Common Position 2001/931 on the application of specific measures to combat terrorism enables the Council to rely on a decision which, following the investigation into the involvement of the person concerned in the financing of terrorist activities, imposes preventive measures such as a freezing of funds. It is apparent from the recitals in the preamble to that common position and Regulation No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism that their essential aim and purpose is to combat international terrorism, cutting it off from its financial resources by freezing the economic funds and resources of persons or entities suspected of involvement in activities linked to terrorism. Thus, those acts do not seek to accompany or support national criminal law procedures, but to prevent new terrorist acts from being committed. Moreover, it is apparent from the references to a national decision adopted by a competent authority, ‘precise information’ and ‘serious and credible evidence or clues’ that Article 1(4) of Common Position 2001/931 aims to protect the persons concerned by ensuring that they are included on the list of persons, groups and entities only on a sufficiently solid factual basis, and that the Common Position seeks to attain that objective by requiring a decision taken by a national authority. That protection of the persons concerned is not called into question if the decision taken by the national authority does not form part of a procedure seeking to impose criminal sanctions, but of a procedure aimed at the adoption of preventive measures. That protection is also ensured where the decision taken by the national authority is not the decision which instigates the investigation, but the decision which draws consequences from an investigation by imposing a measure of a preventive nature on the person concerned, though not a criminal conviction. That conclusion is corroborated by the fact that an inclusion on the list of persons, groups and entities involved in terrorist acts can also be founded on a sanction ordered by the United Nations Security Council. In so far as such sanctions are not, in general, of a criminal nature, an asset freeze such as that imposed by the national decision is wholly comparable to a sanction decided on by the Security Council. (see paras 67, 68, 70-73, 104)

The wording of Article 1(4) of Common Position 2001/931931 on the application of specific measures to combat terrorism refers to the decision taken by a national authority by requiring that precise information or evidence in the file exists which shows that such a decision has been taken. However, it is not apparent from that wording, nor the wording of Article 1(6) of Common Position 2001/931 that, beyond that condition, the decision taken in the past must necessarily still be in force or produce legal effects at the time the Council decides to continue to include a person on the list annexed to that common position. Moreover, account should be taken of the purpose of the reference to a national decision which seeks to ensure that the decision of the Council be taken on a sufficient factual basis enabling the latter to conclude that there is a danger that, if preventive measures are not taken, the person concerned may continue to be involved in terrorist activities. Accordingly, the essential question when reviewing whether to continue to include a person on the list at issue is whether, since that person was included in that list or since the last review, the factual situation has changed in such a way that it is no longer possible to draw the same conclusion in relation to the involvement of the person at issue in terrorist activities. Since the repeal of the national decision was not based on the emergence of new facts or evidence indicating that the person concerned by a fund freezing measure was no longer involved in the financing of terrorism or a change in the assessment of such involvement by the competent national authorities, but the sole reason justifying that repeal was the objective of preventing an overlap between the national fund freezing measure and the fund freezing measure prescribed at European Union level, that repeal is not sufficient to render the maintenance of the applicant on the list at issue incompatible with Article 1(4) and (6) of Common Position 2001/931. (see paras 79-84, 89)

Member States must not adopt a measure by which the Community nature of a legal rule and the consequences which arise from it are concealed from the persons concerned. (see para. 87)

See the text of the decision. (see para. 94)

The right to property under European Union law does not enjoy absolute protection. Consequently, the exercise of the right to property may be restricted, provided that those restrictions in fact correspond to objectives of public interest pursued by the European Union and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the right so guaranteed. With reference to an objective of general interest as fundamental to the international community as the fight by all means, in accordance with the Charter of the United Nations, against the threats to international peace and security posed by acts of terrorism, the freezing of the funds, financial assets and other economic resources of the persons identified in accordance with the rules laid down in Regulation No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, and by Common Position 2001/931 on the application of specific measures to combat terrorism, cannot per se be regarded as inappropriate. As regards the disproportionate nature of the maintenance of an organisation on the list of persons, groups and entities involved in terrorist acts, Articles 5 and 6 of Regulation No 2580/2001 provide for the possibility, first, to authorise the use of frozen funds to meet essential needs or to satisfy certain commitments and, second, to grant specific authorisation to unfreeze funds, other financial assets or other economic resources. Moreover, that maintenance is subject to periodic review so as to ensure that the persons who, and entities which, no longer meet the necessary criteria are removed from it. (see paras 121, 123, 127, 129)

See the text of the decision. (see para.122)