Judgment of the General Court (Fourth Chamber) of 24 November 2021 –

LTTE v Council

(Case T‑160/19)

(Common foreign and security policy – Restrictive measures taken with a view to combating terrorism – Freezing of funds – List of the persons, groups and entities subject to the freezing of funds and economic resources – Maintaining the applicant’s name on the list – Factual basis of the decisions to freeze funds – Error of assessment – Obligation to state reasons – Rights of the defence – Right to effective judicial protection)

1. Action for annulment – Natural or legal persons – Locus standi – Action by an organisation without legal personality, subject to restrictive measures – Admissibility (Art. 263, fourth para., TFEU; Council Decisions (CFSP) 2019/25, (CFSP) 2019/1341 and (CFSP) 2020/1132; Council Regulations 2020/19 and 2020/1128) (see paras 57, 59)

2. Action for annulment – Natural or legal persons – Admissibility criteria – Interest in bringing proceedings – Action needing to be capable of procuring a benefit for the applicant (Art. 263 TFEU) (see paras 68-70, 75)

3. Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Specific restrictive measures directed against certain persons and entities with a view to combating terrorism – Decision reviewing the list of persons, groups or entities concerned and supplementing the list without repealing the earlier decision – Action brought by a part of an entity mentioned in the decision – Admissibility (Art. 263, fourth para., TFEU; Council Decisions (CFSP) 2019/25, (CFSP) 2019/1341 and (CFSP) 2020/1132; Council Regulations 2020/19 and 2020/1128) (see paras 76-78, 80, 83-86)

4. Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Specific restrictive measures directed against certain persons and entities – Decisions to freeze funds – Action brought by persons included in the list of persons and entities subject to restrictive measures – Acts of general application and bundle of individual decisions – Admissibility (Art. 263 TFEU) (see para. 81)

5. Judicial proceedings – Decision or regulation replacing the contested measure in the course of proceedings – New factor – Extension of the initial pleadings – Condition – Initial pleadings directed against the replaced measure – Absence – Inadmissibility (Rules of Procedure of the General Court, Art. 86(1); Council Decision (CFSP) 2020/1132; Council Regulation 2020/19) (see paras 89-92, 96)

6. Judicial proceedings – Admissibility of actions – Judged by reference to the situation when the application was lodged – Decision replacing the contested decision during the proceedings – Adaptation of initial forms of order sought and pleas in law – Possibility subject to the admissibility of the initial application (Rules of Procedure of the General Court, Art. 86) (see paras 94, 95)

7. 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)) (see paras 112, 114-118)

8. 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)) (see paras 119, 120)

9. 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 – 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); Council Decisions (CFSP) 2019/25 and (CFSP) 2019/1341) (see paras 148-156, 158, 165)

10. Common foreign and security policy – 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 – National decision no longer by itself supporting the conclusion that there is an ongoing risk of involvement in acts of terrorism – Obligation of the Council to take into account more recent facts which demonstrate that that risk is ongoing (Council Common Position 2001/931, Art. 1(6); Council Decisions (CFSP) 2019/25 and (CFSP) 2019/1341) (see paras 168-171, 176, 177, 185-187, 191, 204, 208, 215-217, 231, 276, 283)

11. 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, second para., TFEU; Council Decisions (CFSP) 2019/25 and (CFSP) 2019/1341) (see paras 173, 194-199, 273-275, 277)

12. 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 – Continued listing on the basis of a national decision adopted by a competent authority – 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 (CFSP) 2019/25 and (CFSP) 2019/1341) (see paras 174, 175)

13. 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) (see paras 294, 295)

14. Common foreign and security policy – Specific restrictive measures directed against certain persons and entities with a view to combating terrorism – Freezing of funds – Scope – Principle of self-determination – Distinction between the objectives specific to the exercise of the right to self-determination and the behaviour adopted to achieve them (Council Common Position 2001/931, Recitals 5 to 7 and Art. 1(3), first subpara., (i) to (iii); Council Regulation No 2580/2001, Recitals 3, 5 and 6) (see paras 296-300)

15. 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, freedom of expression and the right of assembly – Breach of principle of proportionality – None (Council Common Position 2001/931, Art. 1(6); Council Decisions (CFSP) 2019/25 and (CFSP) 2019/1341; Council Regulation No 2580/2001, Arts 5 and 6) (see paras 311-319)

16. EU law – Principles – Rights of the 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 (Council Decisions (CFSP) 2019/25 and (CFSP) 2019/1341; Regulation No 2580/2001, Art. 2(3)) (see paras 352-355, 357, 358, 360-366)

17. EU law – Principles – Rights of the 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 – Right of access to documents – Right subject to request for access being made to the Council – No infringement (Council Common Position 2001/931; Council Decisions (CFSP) 2019/25 and (CFSP) 2019/1341) (see paras 367-371, 380)

Re:

Application under Article 263 TFEU for annulment of (i) Council Decision (CFSP) 2019/25 of 8 January 2019 amending and 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) 2018/1084 (OJ 2019 L 6, p. 6), (ii) Council Decision (CFSP) 2019/1341 of 8 August 2019 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 2019/25 (OJ 2019 L 209, p. 15), (iii) Council Implementing Regulation (EU) 2020/19 of 13 January 2020 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) 2019/1337 (OJ 2020 L 8 I, p. 1), and (iv) Council Implementing Regulation (EU) 2020/1128 of 30 July 2020 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 2020/19 (OJ 2020 L 247, p. 1), and Council Decision (CFSP) 2020/1132 of 30 July 2020 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) 2020/20 (OJ 2020 L 247, p. 18).

Operative part

The Court:

1. Dismisses the action;

2. Orders the European Political Subdivision of the Liberation Tigers of Tamil Eelam (LTTE) to bear its own costs and to pay those incurred by the Council of the European Union;