JUDGMENT OF THE COURT (Fifth Chamber)

20 June 2019 ( *1 )

(Reference for a preliminary ruling — Common foreign and security policy — Combating terrorism — Restrictive measures directed against certain persons and entities — Freezing of funds — Common Position 2001/931/CFSP — Article 1(4) and (6) — Regulation (EC) No 2580/2001 — Article 2(3) — Council Decision retaining an organisation on the list of persons, groups and entities involved in terrorist acts — Validity)

In Case C‑458/15,

REQUEST for a preliminary ruling under Article 267 TFEU from the Landgericht Saarbrücken (Regional Court, Saarbrücken, Germany), made by decision of 21 August 2015, received at the Court on 28 August 2015, in the criminal proceedings against

K.P.,

THE COURT (Fifth Chamber),

composed of K. Lenaerts, President of the Court, acting as President of the Fifth Chamber, F. Biltgen (Rapporteur), and C. Vajda, Judges,

Advocate General: E. Sharpston,

Registrar: D. Dittert, Head of Unit,

having regard to the written procedure and further to the hearing on 12 September 2018,

after considering the observations submitted on behalf of:

– K.P., by A. Golzem and A. Nagler, Rechtsanwälte,

– the Council of the European Union, by B. Driessen and J.‑P. Hix, acting as Agents,

– the European Commission, by T. Ramopoulos and F. Erlbacher, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 24 January 2019,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the validity of: – Council Decision 2007/445/EC of 28 June 2007 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 Decisions 2006/379/EC and 2006/1008/EC (OJ 2007 L 169, p. 58); – Council Decision 2007/868/EC of 20 December 2007 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 Decision 2007/445/EC (OJ 2007 L 340, p. 100); – Council Decision 2008/583/EC of 15 July 2008 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 Decision 2007/868/EC (OJ 2008 L 188, p. 21); – Council Decision 2009/62/EC of 26 January 2009 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 Decision 2008/583/EC (OJ 2009 L 23, p. 25); and – Council Regulation (EC) No 501/2009 of 15 June 2009 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 Decision 2009/62/EC (OJ 2009 L 151, p. 14); in so far as, by those acts, the Liberation Tigers of Tamil Eelam (the ‘LTTE’) have been kept on the list provided for in Article 2(3) of Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70).

2 The reference was made in criminal proceedings brought against K.P. for the provision of funds to LTTE during the period from 11 August 2007 to 27 November 2009.

Legal context

International law

3 On 28 September 2001, the United Nations Security Council adopted Resolution 1373(2001) setting out wide-ranging strategies to combat terrorism and, in particular, the financing of terrorism. Point 1(c) of that resolution provides, inter alia, that all States are to 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.

4 That resolution does not provide a list of persons to whom those restrictive measures must be applied.

European Union law

Common Position 2001/931/CFSP

5 In order to implement United Nations Security Council Resolution 1373(2001), the Council of the European Union adopted Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93).

6 Article 1 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.’

7 Common Position 2001/931 includes, in an annex, the ‘first list of persons, groups and entities referred to in Article 1 …’; which did not include the LTTE. That Annex was revised on several occasions.

8 The LTTE was included on that list for the first time by Council Common Position 2006/380/CFSP of 29 May 2006 updating Common Position 2001/931 and repealing Common Position 2006/231/CFSP (OJ 2006 L 144, p. 25).

Regulation No 2580/2001

9 Considering that a regulation was necessary in order to implement, at EU level, the measures set out in Common Position 2001/931, the Council adopted Regulation No 2580/2001.

10 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/CFSP; 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 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).’

11 On 27 December 2001, the Council adopted Decision 2001/927/EC implementing Article 2(3) of Regulation No 2580/2001 (OJ 2001 L 344, p. 83). The LTTE did not appear on that list.

The acts relating to the inclusion of the LTTE on the list provided for in Article 2(3) of Regulation No 2580/2001

12 By Decision 2006/379/EC of 29 May 2006 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2005/930/EC (OJ 2006 L 144, p. 21), the Council included the LTTE for the first time on the list provided for in Article 2(3) of Regulation No 2580/2001.

13 The inclusion of the LTTE on that list has been maintained by Council Decision 2006/1008/EC of 21 December 2006 implementing Article 2(3) of Regulation No 2580/2001 (OJ 2006 L 379, p. 123) and subsequently by the acts of the Council at issue in the main proceedings, namely by Decisions 2007/445, 2007/868, 2008/583 and 2009/62 and by Regulation No 501/2009. The statement of reasons for each of those acts was communicated to the LTTE after their adoption.

German law

14 Paragraph 34 of the Außenwirtschaftsgesetz (Law on foreign trade and payments, ‘the AWG’) in the version applicable between 8 April 2006 and 23 April 2009, provided: ‘… (4) A person shall be liable to a custodial sentence of six months to five years if he … 2. infringes a directly applicable prohibition, published in the Bundesanzeiger, on exports, sales, supply, making available, transmission, provision of services, investment, support or circumvention of that prohibition, provided for in a legislative measure of the European Communities which serves to implement an economic sanction adopted by the Council of the European Union in the field of the Common Foreign and Security Policy. … (6) A person shall be liable to a custodial sentence of a minimum of two years if he … 2. commits an act specified in subparagraphs 1, 2 or 4 for the purposes of commercial gain or as a member of a gang formed with a view to the continuing commission of such offences in collaboration with another member of the gang. …’

15 Paragraph 34 of the AWG, in the version applicable between 24 April 2009 and 11 November 2010, was worded as follows: ‘… (4) A person shall be liable to a custodial sentence of six months to five years if he … 2. infringes a directly applicable prohibition, published in the Bundesanzeiger, on exports, imports, transit, transport, sales, supply, making available, transmission, provision of services, investment, support or circumvention of that prohibition, provided for in a legislative measure of the European Communities which serves to implement an economic sanction adopted by the Council of the European Union in the field of the Common Foreign and Security Policy. … … (6) A person shall be liable to a custodial sentence of a minimum of two years if he … 2. commits an act specified in subparagraphs 1, 2 or 4 for the purposes of commercial gain or as a member of a gang formed with a view to the continuing commission of such offences in collaboration with another member of the gang. …’

16 Following a recast of the AWG, those provisions are now included, in substance, in Paragraph 18(1) and Paragraph 18(8) of that law.

The dispute in the main proceedings and the question referred for a preliminary ruling

17 In the context of an investigation into third parties, K.P.’s home was searched. Among the items seized were receipts for financial donations to the LTTE and publicity materials for an event organised by the LTTE.

18 Suspected of being the regional organiser of the Tamil Coordination Committee in Saarland (Germany), K.P. was accused by the Staatsanwaltschaft Saarbrücken (Public Prosecutor’s Office, Saarbrücken, Germany), as a member of a gang and on 43 occasions constituting multiple offences, of having infringed Paragraph 34(4)(2) and Paragraph 34(6)(2) of the AWG. The defendant is alleged, in the period from 11 August 2007 to 27 November 2009, to have received donations totalling EUR 69385 from Tamils living in Germany and transmitted those donations to the Tamil Coordination Committee in Oberhausen (Germany), with a view to the funds being used to finance the armed struggle against the central government of Sri Lanka.

19 At the hearing on 1 July 2015 before the referring court, K.P. submitted that the inclusion of the LTTE on the list provided for in Article 2(3) of Regulation No 2580/2001 was invalid and, consequently, could not serve as a lawful basis of a criminal conviction for the period at issue in the main proceedings.

20 In that regard, K.P. referred, first, to the judgment of 29 June 2010, E and F (C‑550/09, EU:C:2010:382) by which the Court ruled that the inclusion on the list of another organisation (the Devrimci Halk Kurtulus Partisi-Cephesi) was invalid and, second, to the judgment of the General Court of the European Union of 16 October 2014, LTTE v Council (T‑208/11 and T‑508/11, EU:T:2014:885) in which the General Court annulled the implementing regulations adopted by the Council during the years 2011 to 2014 in so far as they had maintained the LTTE on that list. According to K.P., those same grounds of annulment are applicable to the Council decisions and regulation at issue in the main proceedings.

21 The referring court states that the criminal law provisions of the AWG refer, to define the elements of an offence, to other legislative provisions, such as the Council decisions implementing economic sanctions in the field of the Common Foreign and Security Policy.

22 The referring court takes the view that it should be verified whether, as regards the case in the main proceedings, the inclusion of the LTTE on the list provided for in Article 2(3) of Regulation No 2580/2001 is valid for the period from 11 August 2007 to 27 November 2009.

23 Regard being had to the grounds put forward in the judgment of 16 October 2014, LTTE v Council (T‑208/11 and T‑508/11, EU:T:2014:885), it is uncertain whether such a listing was made in observance of the necessary conditions, given that the period at issue in the main proceedings is earlier than those at issue in the cases giving rise to that judgment.

24 If the inclusion of the LTTE on that same list should be declared invalid, the prohibition on making funds available provided for in Article 2(1)(b) of Regulation No 2580/2001 would cease to exist.

25 The referring court adds that the request for a preliminary ruling is admissible given that K.P. is not directly concerned by the decisions and the regulation at issue in the main proceedings, within the meaning of Article 263 TFEU, and that an action for annulment of those acts brought by the defendant is not admissible.

26 In those circumstances, the Landgericht Saarbrücken (Regional Court of Saarbrücken, Germany) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Is the placing of the [LTTE] on the list provided for in Article 2(3) of Regulation [No 2580/2001] for the period from 11 August 2007 to 27 November 2009 (inclusive) resulting in particular from Council Decisions: – [2007/445] of 28 June 2007, – [2007/868] of 20 December 2007 (in its corrigendum version of the same day), – [2008/583] of 15 July 2008, – [2009/62] of 26 January 2009, and Council Regulation [No 501/2009] of 15 June 2009 illegal?’

Consideration of the question referred

27 By its question referred for a preliminary ruling, the referring court asks whether the acts of the Council at issue in the main proceedings are valid in so far as those acts maintained the inclusion of the LTTE on the list provided for in Article 2(3) of Regulation No 2580/2001.

28 It seeks to ascertain, in particular, whether the grounds having led the General Court, in its judgment of 16 October 2014, LTTE v Council (T‑208/11 and T‑508/11, EU:T:2014:885), whose operative part was upheld by the judgment of the Court of Justice of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583), to annul the acts of the Council maintaining the LTTE on that list during the years 2011 to 2014 may also be raised against the acts of the Council at issue in the main proceedings.

Admissibility of the request for a preliminary ruling

29 According to settled case-law, when a question on the validity of a measure adopted by the European Union institutions is raised before a national court, it is for that court to decide whether a decision on the matter is necessary to enable it to give judgment and, consequently, whether it should request the Court to rule on that question (see, to that effect, judgments of 8 July 2010, Afton Chemical, C‑343/09, EU:C:2010:419, paragraph 13, and of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 31).

30 In that regard it should be borne in mind that every party has the right to plead before the national court hearing the case the illegality of the provisions contained in legislative acts of the European Union which serve as the basis for a decision or act of national law relied upon against him, which may prompt that court, which does not have jurisdiction itself to make a finding of such illegality, to put that question to the Court by means of a reference for a preliminary ruling (see, to that effect, judgment of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraph 45).

31 The recognition of that right presupposes, however, that the party at issue had no right of direct action under Article 263 TFEU by which it could challenge provisions, the consequences of which it is suffering without having been able to seek their annulment (judgment of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraph 46).

32 In the present case and whilst the inclusion of the LTTE on the list provided for in Article 2(3) of Regulation No 2580/2001 during the period from 11 August 2007 to 27 November 2009 served Paragraph 34(4) of the AWG, as the basis for the indictment of K.P., the referring court rightly notes that K.P. was not entitled to bring a direct action against the acts of the Council at issue in the main proceedings.

33 K.P. was not personally placed on the list provided for in Article 2(3) of Regulation No 2580/2001, rather the LTTE was placed on that list as an organisation. Furthermore, as the Advocate General observed in point 30 of her Opinion, it is evident from the documents on the file before the Court that K.P. occupies a position of regional organiser for a Tamil coordination committee, part of a rigid hierarchy under the supervision of organisers for local districts and other national organisers for Germany. In the light of the position occupied by the person concerned in that hierarchy, there is no doubt that the power is not conferred on him to represent the LTTE in an action brought before the judicature of the European Union for the annulment of the acts at issue in the main proceedings. Likewise, he is clearly not regarded as being individually concerned by those acts for the purposes of Article 263(4) TFEU since he is not affected by those acts by reason of certain attributes which are peculiar to him or by reason of circumstances in which he is differentiated from any other person (see, to that effect, judgment of 18 January 2007, PKK and KNK v Council, C‑229/05 P, EU:C:2007:32, paragraphs 72 to 74).

34 It follows from the foregoing that the question referred for a preliminary ruling is admissible.

Substance of the question referred for a preliminary ruling

Extent of the examination of validity

35 It follows from the spirit of cooperation which must prevail in the operation of the preliminary reference procedure that the national court must set out in its order for reference the precise reasons why it considers that an answer to its questions concerning the interpretation or validity of certain provisions of EU law is necessary in order to determine the outcome of the case before it (judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 47).

36 It is therefore important that the national court should set out, in particular, the precise reasons which led it to question the validity of certain provisions of EU law and set out the grounds of invalidity which, consequently, appear to it capable of being upheld. That requirement is also stated in Article 94(c) of the Rules of Procedure of the Court of Justice (see, to that effect, judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 48 and the case-law cited).

37 The information contained in the order for reference serves not only to enable the Court to give helpful answers, but also to allow the governments of Member States and other interested parties to submit observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union. It is for the Court to ensure that that opportunity is safeguarded, given that, under Article 23, only the orders for reference are notified to the interested parties, accompanied by a translation in the official language of each Member State, but excluding any case file that may be sent to the Court by the national court (judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 49 and the case-law cited).

38 It follows from the foregoing that, in the context of a question concerning the validity of a provision of EU law, the Court must examine the validity of a provision thereof in the light of the grounds of invalidity set out in the order for reference.

39 In the present case, the referring court is questioning the validity of five acts of the Council maintaining the inclusion of the LTTE on the list provided for in Article 2(3) of Regulation No 2580/2001, namely Decisions 2007/445, 2007/868, 2008/583 and 2009/62 and Regulation No 501/2009.

40 Moreover, the referring court expressly refers to the grounds that led the General Court in its judgment of 16 October 2014, LTTE v Council (T‑208/11 and T‑508/11, EU:T:2014:885) to annul the inclusion of the LTTE on that list during the years 2011 to 2014, annulment which has been upheld by the judgment of the Court of Justice of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583).

41 In his request for an oral hearing, K.P. nevertheless submitted that the Court should also examine, in the context of the present case, the validity of the Council decision initially including the LTTE on the list provided for in Article 2(3) of Regulation No 2580/2001, namely Decision 2006/379 in the present case. As is apparent from paragraph 51 of the judgment of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583), the retention of a person, group or entity on that list is in reality just an extension of the initial listing. In addition, the referring court expressly refers to the judgment of 29 June 2010, E and F (C‑550/09, EU:C:2010:382, paragraph 55), in which the Court annulled the inclusion of an entity on that list because of the fact that neither the decision including that entity on that same list nor the subsequent decisions maintaining that listing were accompanied by a sufficient statement of reasons relating to the legal conditions for the application to that organisation of Regulation No 2580/2001.

42 However, first, in contrast to the case that gave rise to the judgment of 29 June 2010, E and F (C‑550/09, EU:C:2010:382), in which none of the decisions included a statement of reasons, it is apparent from paragraph 13 of the present judgment that all the acts at issue in the main proceedings are accompanied by a statement of reasons for which, according to the Council, there were grounds for keeping the LTTE on the list provided for in Article 2(3) of Regulation No 2580/2001.

43 Second, the finding made in paragraph 51 of the judgment of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583) that the retention of a person, group or entity on the list provided for in Article 2(3) of Regulation No 2580/2001 is, in essence, an extension of the initial listing should be read in the context of the verification of whether there is an ongoing risk of that person, group or entity being involved in terrorist activities, the only relevant question for assessing the possibility of such a retention being, in principle, to ascertain whether, since the listing at issue 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 risk (see, to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 46).

44 The decision initially including a person, group or entity on the list provided for in Article 2(3) of Regulation No 2580/2001 and the subsequent act maintaining that listing are two distinct legal measures adopted in reliance upon different legal bases, the first one being based on Article 1(4) of Common Position 2001/931 and presupposing the existence of a national decision by a competent authority and the second one being based on Article 1(6) of Common Position 2001/931 and not requiring the existence of such a national decision. That distinction is attributable to the fact that the retention of a person, group or entity on that list is not just an extension of the original listing, but presupposes in particular that there is an ongoing risk of that person, group or entity being involved in terrorist activities, as initially established by the Council (see, to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 59 to 61).

45 In those circumstances and, without the referring court having expressly made a request to that effect, the present request for a preliminary ruling concerning the validity of the acts of the Council ordering the retention of the LTTS on the list provided for in Article 2(3) of Regulation No 2580/2001 during the period concerned does not oblige the Court to examine the validity of a decision ordering the initial listing.

46 Extending the review of the validity to acts that are not referred to in the reference for a preliminary ruling would, moreover, as the Advocate General noted in point 36 of her Opinion, deprive the parties concerned of the opportunity to submit observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union and infringe their rights to be heard.

Validity of the acts at issue in the main proceedings

47 As is apparent from paragraph 28 of the present judgment, it is for the Court to review the validity of Council decisions and the regulation at issue in the main proceedings having regard to the annulment by the General Court of the acts ordering the retention of the LTTE during the years 2011 to 2014 in its judgment of 16 October 2014, LTTE v Council (T‑208/11 and T‑508/11, EU:T:2014:885), and upheld by the Court of Justice in its judgment of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583).

48 In that regard, it should be noted that, when the validity of a decision ordering the retention of a person, group or entity on the list provided for in Article 2(3) of Regulation No 2580/2001 is contested before the Courts of the European Union, these are required to determine, in particular, first, whether the obligation to state reasons laid down in Article 296 TFEU has been complied with and, therefore, whether the reasons relied on are sufficiently detailed and specific, and, second, whether those reasons are substantiated (see, to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 70). In the present case, it must be made clear that the questions asked by the referring court only concern the Council’s obligation to state reasons as regards the acts at issue in the main proceedings.

49 In that context, it should further be noted that the statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the act in such a way as to enable the persons concerned to ascertain the reasons for the measure so that they can assess whether it is well founded and to enable the court having jurisdiction to exercise its power of review (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 138; of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraph 54; and of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 29).

50 In respect of the conditions under which the Council may, when reviewing the inclusion of a person, group or entity on the list provided for in Article 2(3) of Regulation No 2580/2001, decide to retain that listing, it should be noted that, as has already been stated in paragraph 44 of the present judgment, Article 1 of Common Position 2001/931 draws a distinction between the initial inclusion of a person, group or entity on that list, referred to in paragraph 4 thereof, and the retention on that list of a person, group or entity already listed, referred to in paragraph 6 thereof (see, to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 58).

51 Whilst the initial decision to include on the list provided for in Article 2(3) of Regulation No 2580/2001 requires the Council to base that inclusion on precise information or material in the relevant file which indicates that a decision was taken by a competent authority, with regard to the subsequent decisions maintaining that listing, that institution is obliged to take into account facts which demonstrate whether, since the initial listing 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, group or entity concerned in terrorist activities (see, to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 45 and 46 and the case-law cited).

52 In the process of verifying whether the risk of the person, group or entity concerned being involved in terrorist activities is ongoing, the subsequent fate of the national decision that served as the basis for the initial inclusion of that person, group or entity on the list provided for in Article 2(3) of Regulation No 2580/2001 and new facts or material, which demonstrate that that risk is ongoing, must be duly taken into consideration (see, to that effect, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 156, and of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 52 and 54).

53 In the present case, it is apparent from the statement of reasons for the acts at issue in the main proceedings that the Council based the retention of the inclusion of the LTTE on the list provided for in Article 2(3) of Regulation No 2580/2001, inter alia, on two decisions that were adopted by the competent UK authorities during 2001 and that had served as the basis for the initial inclusion of the LTTE on that list and on the existence of 12 acts coming within the concept of ‘terrorist act’ for the purposes of Article 1(3) of Common Position 2001/931 and that could be attributed to the LTTE.

54 Consequently, and as the Advocate General pointed out in points 51 to 53 of her Opinion, those statements of reasons allowed the LTTE to know the actual and specific reasons why the Council considered that the inclusion of the name on that list should be maintained.

55 As regards the question of ascertaining whether those reasons were appropriate to demonstrate that the risk of the LTTE’s involvement in acts of terrorism is ongoing, it should be noted that, in the judgment of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583) concerning the legality of the acts maintaining the inclusion of the LTTE on the list provided for in Article 2(3) of Regulation No 2580/2001 during the years 2011 to 2014, the Court noted, first of all, that a considerable amount of time elapsed between the adoption, during 2001, of the UK decisions that served as a basis for the LTTE’s initial inclusion on that list and the adoption of acts maintaining that listing during the years 2011 to 2014. Next, the Court found that, as is apparent from the statements of reasons for those acts, the LTTE incurred a military defeat, announced by the Sri Lankan Government in May 2009, which significantly weakened that organisation. The Court inferred therefrom that the Council was obliged to base the retention of the LTTE on that list on new facts or material demonstrating that the risk of the LTTE being involved in terrorist activities was ongoing (see, to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 55).

56 In that regard, it should be noted, in the first place, that, in the present case, an insignificant amount of time elapsed between the adoption of the national decisions having served as a basis for the LTTE’s initial inclusion on the list provided for in Article 2(3) of Regulation No 2580/2001 and the adoption of the acts at issue in the main proceedings.

57 As the Advocate General pointed out in point 60 of her Opinion, little more than 8 months elapsed between the date of the last act of terrorism relied upon by the Council in its various statements of reasons, namely 16 October 2006, and the first act at issue in the main proceedings, namely Decision 2007/445 adopted on 28 June 2007. In addition, less than 2 years separate that first act and the last act at issue in the main proceedings, namely Regulation No 501/2009 adopted on 15 June 2009. The acts of terrorism in 2006 in conjunction with the national decisions of the competent UK authorities in 2001 could not therefore be regarded as facts or material too far apart in time to justify the retention, by the adoption of the acts at issue in the main proceedings, of the inclusion of the LTTE on the list provided for in Article 2(3) of Regulation No 2580/2001.

58 In the second place, as regards the material change in circumstances, the Court already ruled that the military defeat incurred by the LTTE in May 2009 represented a significant change in circumstances, one that was capable of calling in question the ongoing nature of the risk of the LTTE’s involvement in terrorist activities, and that the Council was obliged to refer, in the statements of reasons for the decisions adopted during the years 2011 to 2014 maintaining the LTTE on the list provided for in Article 2(3) of Regulation No 2580/2001, to the evidence supporting its assessment that, notwithstanding that military defeat, the likely intention of the LTTE was to continue terrorist attacks in Sri Lanka (see, to that effect, the judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 79).

59 In the present case, whilst the military defeat was incurred by the LTTE on 15 May 2009, it should be noted that Regulation No 501/2009, which was adopted on 15 June 2009 and represented, accordingly, the only act among the acts at issue in the main proceedings that was adopted after that defeat, neither refers a fortiori to that event nor to the reasons why it was necessary that the LLTE should, notwithstanding that defeat, be kept on that list.

60 It is true that, as the Advocate General observed in point 61 of her Opinion, the six-month period within which the listing of a person, group or entity must be reviewed in accordance with Article 1(6) of Common Position 2001/931 is a short time frame such that, including in the absence of any terrorist act in respect of a given period or a military defeat in the month preceding the end of that period, the retention of the listing for a new period may be considered prudent.

61 In the light of the Council’s discretion in the context of preventive measures to prevent terrorist activity and ensure a fair balance between the maintenance of international peace and security and the protection of the fundamental rights and freedoms of the person concerned, the Council must be granted the right to maintain the person, group or entity concerned on the list provided for in Article 2(3) of Regulation No 2580/2001, even after the recent end of the terrorist activity in the strict sense, if the circumstances warrant it.

62 However, in the present case, even if the Council considers that it was premature, notwithstanding the military defeat incurred, to remove the LTTE from that list, it was nonetheless obliged, under the obligation to state reasons incumbent on it, to set out the reasons for its decision. The absence of any explanation in that regard is therefore, as the Advocate General noted in point 66 of her Opinion, an irregularity under Article 296 TFEU leading to the invalidity of Regulation No 501/2009.

63 It follows from all the foregoing that consideration of the question referred for a preliminary ruling has disclosed no factor such as to affect the validity of Decisions 2007/445, 2007/868, 2008/583 and 2009/62, In contrast, Regulation No 501/2009 is invalid in so far as, by that regulation, the LTTE was maintained on the list provided for in Article 2(3) of Regulation No 2580/2001.

Costs

64 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fifth Chamber) hereby rules:

1. Consideration of the question referred for a preliminary ruling has disclosed no factor such as to affect the validity of: – Council Decision 2007/445/EC of 28 June 2007 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 Decisions 2006/379/EC and 2006/1008/EC; – Council Decision 2007/868/EC of 20 December 2007 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 Decision 2007/445/EC; – Council Decision 2008/583/EC of 15 July 2008 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 Decision 2007/868/EC; and – Council Decision 2009/62/EC of 26 January 2009 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 Decision 2008/583/EC.

2. Council Regulation (EC) No 501/2009 of 15 June 2009 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 Decision 2009/62/EC is invalid, in so far as, by that regulation, the Liberation Tigers of Tamil Eelam was maintained on the list provided for in Article 2(3) of Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism.

[Signatures]

( *1 ) Language of the case: German.