Case T-76/07: Action brought on 12 March 2007 — El Fatmi v Council of the European Union
Date: 2007-05-26
Institutions: Court of First Instance
Subjects: action for annulment (EU), economic sanctions, international sanctions, natural person, restriction of liberty, terrorism

C 117/22

EN

Official Journal of the European Union

26.5.2007

COURT OF FIRST INSTANCE

Action brought on 12 March 2007 — Ahmed Hamdi v
Council of the European Union

(Case T-75/07)

(2007/C 117/35)

Language of the case: Dutch

Council. There is no link between the applicant and third coun-
tries or other aspects of the Community foreign and security
policy and thus the second pillar is not applicable to the appli-
cant's case.

Article 308 EC is not a legal basis because there is no link with
the implementation of
the
contested regulation does not give effect to any Union objective
and thus the combination of Articles 60, 301 and 308 is not an
adequate legal basis.

the common market. Moreover,

Parties

Applicant: Ahmed Hamdi (Amsterdam, Netherlands) (represented
by: M.J.G. Uiterwaal, lawyer)

Defendant: Council of the European Union

Form of order sought

— The Common Position 2002/402/CSFP (OJ 2002 L 344,
p. 93) is, in the case of the applicant, wrongly used as the
basis for Regulation 2001/2580/EC (OJ 2001 L 344, p. 70)
and so the regulation is not binding on the applicant;

— in any event,

that regulation should not be applied as

against the applicant;

— in any event, Decision 2006/1008/EC of 21 December

2006 (OJ 2006 L 379, p. 123) should be annulled;

— the Councilshould be ordered to pay the costs.

Pleas in law and main arguments

The applicant was sentenced to a period of imprisonment after
the national court found that he had been proved to belong to a
terrorist organisation,
the Hofstadgroep. The applicant has
appealed against that judgment.

submits

the applicant

the contested decision
Finally,
infringes his fundamental rights, in particular the right to the
peaceful enjoyment of property and his right to undisturbed
private life, as follow from the Convention for the Protection of
Human Rights and Fundamental Freedoms (ECHR).

that

(1) Council Decision 2006/1008/EC of 21 December 2006 imple-
menting 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 (OJ 2006 L 379, p. 123).

(2) Council Regulation (EC) No 2580/2001 of 27 December 2001 on
specific restrictive measures directed against certain persons and enti-
ties with a view to combating terrorism (OJ 2001 L 344, p. 70).

Action brought on 12 March 2007 — El Fatmi v Council of
the European Union

(Case T-76/07)

(2007/C 117/36)

Language of the case: Dutch

In Decision 2006/1008/EC (1) the Council added the applicant
to the list of persons and entities to which Regulation (EC)
No 2580/2001 (2) applies.

Parties

In support of his action the applicant submits that both the
contested decision and the contested regulation were adopted in
breach of essential procedural requirements and in particular
with an inadequate statement of reasons. In the regulation, the
Council has failed to explain why it was necessary in the frame-
work of the common market. In the decision, there is no state-
ment of the reasons why the Council considered that it had to
apply Regulation No 2580/2001 to the applicant.

The applicant also submits that the contested decision lacks the
necessary legal basis. Regulation No 2580/2001 conflicts with
the EC Treaty in so far as the regulation is applied to the appli-
cant. The contested regulation is not the necessary implementa-
tion of obligations flowing from a resolution of the UN Security

Applicant: Nouriddin El Fatmi (Amsterdam, Netherlands) (repre-
sented by: M.J.G. Uiterwaal, lawyer)

Defendant: Council of the European Union

Form of order sought

— Common Position 2002/402/CSFP (OJ 2002 L 344, p. 93)
is, in the case of the applicant, wrongly used as the basis for
Regulation 2001/2580/EC (OJ 2001 L 344, p. 70) and so
the regulation is not binding on the applicant;

26.5.2007

EN

Official Journal of the European Union

C 117/23

— in any event,

that regulation should not be applied as

against the applicant;

— in any event, Decision 2006/1008/EC of 21 December

2006 (OJ 2006 L 379, p. 123) should be annulled;

— the Council should be ordered to pay the costs.

Pleas in law and main arguments

The pleas and main arguments raised by the applicant are the
same as in Case T-75/07 Hamdi v Council, apart from the last
plea, which is not raised by the applicant in the present case.

Action brought on 14 March 2007 — KG Holding (in liqui-
dation) v Commission

(Case T-81/07)

(2007/C 117/37)

Language of the case: Dutch

Parties

Applicant: Jan Rudolf Maas, acting in his capacity as receiver in
relating to K.G. Holding N.V.
the liquidation proceedings
(Rotterdam, Netherlands) (represented by: G. van der Wal and
T. Boesman, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul

the Commission's decision of 19 July 2006 in

Case C 30/2005;

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

applicant

The
Decision
2006/939/EC of 19 July 2006 on the aid measure notified by
the Netherlands for KG Holding NV (1).

Commission

challenging

is

The aid measure mentioned related to restructuring aid which
the Netherlands wished to grant
to KG Holding NV by
converting a previously approved rescue loan and the interest
due thereon into equity capital. In the contested decision, the
Commission declares the aid measure, in the form of restruc-
turing aid, to be incompatible with the common market.

The Commission also ruled that the Netherlands had to recover
from KG Holding NV and its subsidiary Kliq BV that portion of
the aid which KG Holding NV had transferred to Kliq BV as a
rescue loan and which had been converted into equity capital,
and that the Netherlands were required to register with the
receiver their claim against KG Holding NV and/or Kliq Reïnte-
gratie as a creditor in the liquidation proceedings.

In support of his application, the applicant submits, first, that
the Commission committed errors of appraisal, as a result of
which the contested decision is inadequately reasoned and at
variance with Article 87(1) EC. The applicant claims in particu-
lar that the Commission erred in deciding that the Netherlands
had to register with the receiver their claim in the amount of
EUR 35.75 million against KG Holding and Kliq Reïntegratie as
a creditor in the liquidation proceedings. It is, the applicant
contends, unclear whether the Commission concluded in the
contested decision,
in regard to KG Holding, that there was
unlawful aid in the amount of EUR 35.75 million that had to
be claimed back by the Netherlands or whether what was in
issue was rescue aid which the Commission approved in the
contested decision on the basis of point 23(d) of the Com-
munity Guidelines on State aid for rescuing and restructuring
firms in difficulty (2). Further, it is alleged that the Commission,
in its decision of 16 December 2003 (3), had agreed that this
amount was to be used to finance the redundancies of staff
members and the redemption of the redundant contracts of Kliq
Reïntegratie, and that Kliq Reïntegratie was thereafter to be
placed in liquidation.

The applicant submits, second, that the Commission erred in its
claim regarding the full payment of KG Holding's shares in Kliq
BV through set-off of
the obligation to make full payment
against KG Holding's claim against Kliq BV under the loan agree-
ment. That, it is claimed, did not form any part of the decision
of 5 August 2005 (4) which initiated the proceedings. The
Commission,
it is alleged, misused its powers and acted in a
manner contrary to the rights of the defence and the principle
of audi alteram partem.

Third, it is alleged that the Commission wrongly failed to estab-
lish that the alleged aid might be liable to have an adverse effect
on competition and trade between Member States; at any rate,
the Commission's findings in this regard are not adequately
reasoned.

Fourth, the Commission is alleged to have erroneously deter-
mined that the alleged aid of EUR 9.25 million must be recov-
ered by the Netherlands from KG Holding and Kliq BV. It is
submitted that the Commission also erred in finding that the
alleged aid of EUR 35.75 million had to recovered from
KG Holding and/or Kliq Reïntegratie by registering those claims
in the liquidation proceedings. By reason of the liquidation of
the
KG Holding, Kliq Reïntegratie and Kliq BV, recovery of
amounts of alleged aid will, it is argued, be permanently impos-
sible and has in any event become pointless in the sense that
recovery through registration in the liquidation of those compa-
nies is unnecessary and, indeed, has become entirely superfluous
for the purpose of putting an end to the distortion of competi-
tion.

Fifth, it is argued that the Commission erred in its statements
and findings in law with regard to a current-account credit
facility of EUR 17 million already provided by the Netherlands
to KG Holding when the latter was established and in accord-
ance with the rules on State aid and which did not form part of
the measure under examination in the contested decision.