CELEX: 62007TJ0341(01)
Language: en
Date: 2011-11-23
Title: Judgment of the General Court (Second Chamber, extended composition) of 23 November 2011. # Jose Maria Sison v Council of the European Union. # Common foreign and security policy - Restrictive measures against certain persons and entities with a view to combating terrorism - Common Position 2001/931/CFSP and Regulation (EC) No 2580/2001 - Annulment by a judgment of the General Court of a measure freezing funds - Non-contractual liability - Sufficiently serious breach of a rule of law conferring rights on individuals. # Case T-341/07.

Case T-341/07
      Jose Maria Sison
      v
      Council of the European Union
      (Common foreign and security policy – Restrictive measures against certain persons and entities with a view to combating terrorism – Common Position 2001/931/CFSP and Regulation (EC) No 2580/2001 – Annulment by a judgment of the General Court of a measure freezing funds – Non-contractual liability – Sufficiently serious breach of a rule of law conferring rights on individuals)
      Summary of the Judgment
      1.      Procedure – Res judicata – Scope
      (Arts 235 EC and 288 EC)
      2.      Non-contractual liability – Conditions – Sufficiently serious breach of a rule of law intended to confer rights on individuals
            – Reduced, or non-existent, discretion of a Community institution at the time the measure was adopted – Necessary to take
            account of the context 
      (Art. 288, second para., EC)
      3.      Non-contractual liability – Conditions – Sufficiently serious breach of a rule of law intended to confer rights on individuals
            – Rule of law intended to confer rights on individuals –Meaning 
      (Art. 288, second para., EC; Council Common Position 2001/931, Art. 1(4); Council Regulation No 2580/2001, Art. 2(3))
      4.      European Union – Common foreign and security policy – Specific restrictive measures directed against certain persons and entities
            with a view to combating terrorism – Decision to freeze funds
      (Council Common Position 2001/931, Art. 1(4); Council Regulation No 2580/2001, Art. 2(3))
      1.      In connection with an action seeking to establish the non-contractual liability of the Union, when the General Court has held,
         in an earlier judgment, that a claim for compensation must be dismissed, for neither the fact and extent of the damage alleged
         by the applicant, nor the existence of a causal link between that damage and the instances of material unlawfulness pleaded
         in support of that claim, had been proved to the requisite legal standard, the authority of res judicata attaching to that judgment means that the applicant may not claim afresh, pursuant to Article 235 EC and Article 288 EC,
         compensation for damage corresponding to the damage in respect of which a claim for compensation on the same grounds has already
         been rejected by that judgment.
      
      Considerations relating to absence of proof of the fact and extent of the damage alleged or of the existence of a causal link
         between that damage and the instances of material unlawfulness pleaded cannot be described as ‘obiter dicta’ or as ‘unnecessary’ in the General Court’s assessment.
      
      (see paras 22-24)
      2.      In order to satisfy the condition for the Community to incur non-contractual liability for the unlawfulness of the conduct
         of the institutions that is objected to, it is necessary to establish a sufficiently serious breach of a rule of law ‘intended
         to confer rights on individuals’.
      
      The decisive test for a finding that this requirement has been satisfied is whether the institution concerned has manifestly
         and gravely disregarded the limits of its discretion. The determining factor in deciding whether there has been such an infringement
         is therefore the discretion available to the institution concerned.  So, if the institution in question has only considerably
         reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a
         sufficiently serious breach.
      
      However, there is no automatic link between, on the one hand, the institution concerned’s having no discretion and, on the
         other, the classification of the infringement as a sufficiently serious breach.  The extent of the discretion enjoyed by the
         institution concerned, although determinative, is not the only yardstick.  The system of rules relating to the second paragraph
         of Article 288 EC also takes into account, in particular, the complexity of the situations to be regulated and the difficulties
         in applying or interpreting the texts. It follows that only the finding of an irregularity that an administrative authority,
         exercising ordinary care and diligence, would not have committed in similar circumstances, can render the Community liable.
      
      It is, consequently, for the Union judicature, once it has first determined whether the institution concerned enjoyed any
         discretion, next to take into consideration the complexity of the situations to be regulated, any difficulties in applying
         or interpreting the legislation, the clarity and precision of the rule infringed, and whether the error made was inexcusable
         or intentional. On any view, an infringement of Community law is sufficiently serious if it has persisted despite a judgment
         finding the infringement in question to be established, or a preliminary ruling or settled case-law of the Court on the matter
         from which it is clear that the conduct in question constituted an infringement.
      
      (see paras 33, 35-37, 39-40)
      3.      As regards the non-contractual liability of the Community, the condition that the rule of law breached must be intended to
         confer rights on individuals is met if that rule, while in the main concerning interests of a general nature, also protects
         the individual interests of the persons concerned.
      
      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 of Article 1(4) of Council Common Position 2001/931 on the application of specific
         measures to combat terrorism ensure that the individual interests of the persons liable to be concerned are protected and
         they are, therefore, to be considered to be rules of law intended to confer rights on individuals. If the fundamental conditions
         set out in Article 2(3) of the regulation, read in conjunction with Article 1(4) of the Common Position, are not satisfied,
         the individual concerned is entitled not to have the measures in question imposed on him. Such a right necessarily implies
         that the individual on whom restrictive measures are imposed in circumstances not provided for by the provisions in question
         may seek compensation for the harmful consequences of those measures, if it should prove that their imposition was founded
         on a sufficiently serious breach of the substantive rules applied by the Council.
      
      (see paras 47, 52)
      4.      The Council has no latitude when it determines whether the matters of law and of fact, that may be preconditions for the application
         of a fund-freezing measure to a person, group or entity, as defined by Article 2(3) of Regulation No 2580/2001 on specific
         restrictive measures directed against certain persons and entities with a view to combating terrorism, in conjunction with
         Article 1(4) of Common Position 2001/931 on the application of specific measures to combat terrorism, have been established
         in any given case.  This holds, most particularly, for the verification of the existence of precise information or material
         in the relevant file indicating that a decision has been taken by a national authority with regard to the person concerned
         that meets the definition laid down in Article 1(4) of Common Position 2001/931 and, at a later stage, for the verification
         of the action taken following that decision at national level.
      
      However, that fact alone is not enough for it to be considered that the breach of those provisions is in the instant case
         sufficiently serious for the Community’s liability to be incurred when the Council has adopted a fund-freezing decision on
         the basis of a national decision to open an investigation or to instigate a prosecution for acts of terrorism. The court must
         also take into consideration, in particular, the legal and factual complexity of the situations to be regulated and the difficulties
         in applying or interpreting the texts, while taking account, in particular, of the importance of the objectives of general
         interest pursued, in order to ascertain whether the error of law committed by the Council is an irregularity that an administrative
         authority exercising ordinary care and diligence would not have committed in similar circumstances.
      
      (see paras 57-58, 61)
JUDGMENT OF THE GENERAL COURT (Second Chamber, Extended Composition)
      23 November 2011 (*)
      
      (Common foreign and security policy – Restrictive measures against certain persons and entities with a view to combating terrorism – Common Position 2001/931/CFSP and Regulation (EC) No 2580/2001 – Annulment by a judgment of the General Court of a measure freezing funds – Non-contractual liability – Sufficiently serious breach of a rule of law conferring rights on individuals)
      In Case T‑341/07,
      Jose Maria Sison, residing at Utrecht (Netherlands), represented by J. Fermon, A. Comte, H. Schultz, D. Gürses and W. Kaleck, lawyers,
      
      applicant,
      v
      Council of the European Union, represented by M. Bishop, E. Finnegan and. R. Szostak, acting as Agents,
      
      defendant,
      supported by
      Kingdom of the Netherlands, represented by C. Wissels, M. de Mol, Y. de Vries, M. Noort, J. Langer and M. Bulterman, acting as Agents,
      
      by
      United Kingdom of Great Britain and Northern Ireland, represented by S. Behzadi Spencer and I. Rao, acting as Agents,
      
      and by
      European Commission, represented initially by P. Aalto and S. Boelaert, and subsequently by S. Boelaert and P. Van Nuffel, acting as Agents,
      
      interveners,
      APPLICATION now, following the judgment of the General Court of 30 September 2009 in Case T‑341/07 Sison v Council [2009] ECR II‑3625, for compensation for damage allegedly sustained by the applicant as a result of the restrictive measures
         taken against him with a view to combating terrorism,
      
      THE GENERAL COURT (Second Chamber, Extended Composition),
      composed of N.J. Forwood (Rapporteur), President, F. Dehousse, M. Prek, J. Schwarcz and A. Popescu, Judges,
      Registrar: N. Rosner, Administrator,
      having regard to the written procedure and further to the hearing of 30 March 2011,
      gives the following 
      Judgment
       Background to the dispute
      1        For a summary of the background to this dispute, reference is made, first, to the judgment of the General Court of 11 July
         2007 in Case T‑47/03 Sison v Council, not published in the ECR (‘Sison I’), and, second, to the interlocutory judgment of the General Court of 30 September 2009 in Case T‑341/07 Sison v Council [2009] ECR II‑3625, ‘Sison II’.
      
       Procedure 
      2        By application lodged at the Registry of the General Court on 10 September 2007, Jose Maria Sison, the applicant, brought
         the present action.  Initially, the subject-matter of the action was, first, a claim for annulment in part 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) pursuant to Article 230 EC and, secondly, a claim for compensation pursuant to Articles 235 EC and
         288 EC.
      
      3        On 13 November 2007, the Court (Seventh Chamber) decided to adjudicate under an expedited procedure as regards the action
         for annulment pursuant to Article 230 EC.  At the parties’ request, by order of the same day the President of the Seventh
         Chamber of the General Court stayed proceedings in respect of the action for compensation pursuant to Articles 235 EC and
         288 EC until delivery of the judgment to be given on the action for annulment pursuant to Article 230 EC.
      
      4        By the judgment in Sison II, the Court annulled Decision 2007/445, Council Decision 2007/868/EC of 20 December 2007 implementing Article 2(3) of Regulation
         No 2580/2001 and repealing Decision 2007/445 (OJ 2007 L 340, p. 100), Council Decision 2008/343/EC of 29 April 2008 amending
         Decision 2007/868 (OJ 2008 L 116, p. 25), Council Decision 2008/583/EC of 15 July 2008 implementing Article 2(3) of Regulation
         No 2580/2001 and repealing Decision 2007/868 (OJ 2008 L 188, p. 21), Council Decision 2009/62/EC of 26 January 2009 implementing
         Article 2(3) of Regulation No 2580/2001 and repealing Decision 2008/583 (OJ 2009 L 23, p. 25) and Council Regulation (EC)
         No 501/2009 of 15 June 2009 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2009/62 (OJ 2009 L 151,
         p. 14), in so far as those measures concerned the applicant. As that judgment did not close the proceedings, the costs were
         reserved.
      
      5        Following the delivery of the judgment in Sison II, the proceedings were resumed in relation to the action for damages pursuant to Articles 235 EC and 288 EC.
      
      6        The Council of the European Union not having lodged its defence within the prescribed period, the Court (Seventh Chamber)
         sought the applicant’s views on the remainder of the proceedings, in the light of Article 122(1) of the Rules of Procedure.
      
      7        By letter received at the Registry on 8 February 2010, the applicant asked the Court to accept the Council’s defence, despite
         the fact that it had been lodged late, so as to enable the proceedings to resume on a normal inter partes basis. That request was granted by decision of the Court (Seventh Chamber) of the same date and the proceedings then followed
         the customary course.
      
      8        The composition of the Chambers of the General Court having been changed, the Judge-Rapporteur was attached to the Second
         Chamber, to which this case was, in consequence, assigned.
      
      9        Pursuant to Articles 14(1) and 51(1) of the Rules of Procedure and on the proposal of the Second Chamber, the General Court
         decided to assign the case to the Second Chamber, Extended Composition.
      
      10      Upon hearing the report of the Judge-Rapporteur, the Court (Second Chamber, Extended Composition) decided to open the oral
         procedure and, by way of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure, put
         a written question to the parties, asking them to reply to it in writing.  All the parties except the United Kingdom of Great
         Britain and Northern Ireland complied with this request within the prescribed period.
      
      11      The oral arguments of the parties, except of the United Kingdom, which was not represented, and their replies to the questions
         asked by the Court, were presented at the hearing of 30 March 2011.
      
       Forms of order sought
      12      The applicant claims that the Court should:
      
      –        order the European Union to compensate him, on the basis of Articles 235 EC and 288 EC, in the amount of EUR 291 427.97, plus
         EUR 200.87 every month until delivery of the judgment to be given, and interest from October 2002 until payment in full;
      
      –        order the Council to pay the costs.
      13      The Council, supported by the interveners, contends that the Court should:
      
      –        dismiss the action for damages as unfounded;
      –        order the applicant to pay the costs.
       Law
       Admissibility
      14      The applicant has argued, in his pleadings, that he is entitled to claim compensation for the damage allegedly caused by all
         the measures freezing his assets adopted by the Council since October 2002, without distinguishing according to whether the
         damage was associated with the measures at issue in the case giving rise to Sison I, paragraph 1 above, or with those at issue in the present case.
      
      15      With more particular regard to the measures contested in the case giving rise to the judgment in Sison I, the applicant thus argued in his pleadings that, because the judgment had retroactive effect, he ought to have been placed
         in the same legal position as that in which he found himself before those measures were adopted. Moreover, it is clearly established
         that the substantive unlawfulness tainting the measures annulled by Sison II was already present, and in the same way, in the measures at issue in the case which gave rise to the judgment in Sison I, even though, in the latter case, the Court was able to apply its judicial review only to the observance of procedural safeguards
         and was not therefore in a position to be able to sanction that substantive unlawfulness (see Sison I, paragraph 1 above, paragraph 225).
      
      16      The Council in its pleadings has not contested that interpretation of the scope of the present action for damages.
      
      17      None the less, the Court raised of its own motion the question whether the application for compensation for the damage allegedly
         caused by the measures at issue in the case giving rise to Sison I, paragraph 1 above, was inadmissible.  Accordingly, by measure of organisation of procedure of 21 February 2011, the Court
         invited the parties to give their views in writing on whether the force of res judicata attaching to the judgment in Sison I precluded the applicant from being able to claim afresh, under Articles 235 EC and 288 EC, compensation for damage corresponding
         to that in respect of which the claim for compensation in the same terms had already been dismissed by that judgment (paragraph
         243).
      
      18      In his written observations, lodged at the Court Registry on 8 March 2011, the applicant claimed that the force of res judicata attaching to Sison I, paragraph 1 above, did not prevent his claiming compensation in the terms used in his pleadings.  He argued, in essence,
         that the matters of fact and law concerned in that case had not been ‘actually or necessarily settled’ by Sison I, paragraph 1 above.  More particularly, the Court did not in that judgment examine the damage caused by the Council’s conduct
         after 29 May 2006, or the damage caused by the ‘substantial illegality’ of the Council’s action.  Moreover, in his view, dismissal
         of the present action for compensation, on the grounds of the res judicata exception, would prejudice his right to an effective remedy before an impartial tribunal in accordance with Article 47 of
         the Charter of Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1).
      
      19      In their written observations, lodged at the Registry on 8 and 7 March 2011 respectively, the Council and the Kingdom of the
         Netherlands, on the one hand, and the European Commission, on the other, gave an affirmative reply to the question asked by
         the Court.
      
      20      In this connection, it is to be recalled that the authority of a judgment, entailing the inadmissibility of an action if the
         proceedings are between the same parties and have the same purpose and the same legal basis as the action previously disposed
         of, presents an absolute bar to proceedings (see, to this effect, Case T‑164/01 Lucaccioni v Commission [2003] ECR-SC I‑A‑67 and II‑367, paragraph 28 and case-law cited) and, therefore, this plea of inadmissibility may, indeed
         must, be examined by the court of its own motion.  According to settled case-law, the principle of res judicata extends only to the matters of fact and law actually or necessarily settled by the judicial decision in question (Joined
         Cases 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 Limburgse Vinyl Maatschappij and Others v Commission [2002] I‑8375, paragraph 44, and Case C‑462/05 Commission v Portugal [2008] ECR I‑4183, paragraph 23 and case-law cited).
      
      21      In this instance, it is clear from comparison of the various heads of damage for which compensation was claimed, under the
         Community’s non-contractual liability, in the action giving rise to Sison I, paragraph 1 above (see paragraph 228 of that judgment), with some of the heads of damage for which compensation is claimed,
         under that same liability, in the present action (see the Report for the Hearing, paragraphs 38, 41 and 49), that they in
         part overlap, ratione temporis, in that they relate to the period from October 2002 to the date of delivery of Sison I, paragraph 1 above.  Furthermore, the applicant himself has maintained in his pleadings that all the damage arose from the
         same substantive illegality that vitiated the Council’s conduct (see paragraph 15 above).
      
      22      It is also to be recalled that, in Sison I, paragraph 1 above, the Court, while considering that it was not in a position to determine whether the condition relating
         to the unlawfulness of the Council’s conduct complained of had been satisfied, and in particular, whether the Council had
         committed a manifest error of assessment in deciding to freeze the applicant’s funds on the basis of the information available
         to it or whether it had manifestly and gravely disregarded the limits set on its discretion (Sison I, paragraph 1 above, paragraph 242), held that the claim for compensation must, in any event, be dismissed, for neither the
         fact and extent of the damage alleged, as set out in paragraph 228 of that judgment, nor the existence of a causal link between
         that damage and the instances of material unlawfulness pleaded in support of that claim, had been proved to the requisite
         legal standard (Sison I, paragraph 1 above, paragraphs 243 and 251).
      
      23      Contrary to what the applicant maintains, those considerations relating to absence of proof of the fact and extent of the
         damage alleged or of the existence of a causal link between that damage and the instances of material unlawfulness pleaded
         cannot be described as ‘obiter dicta’ or as ‘unnecessary’ in the Court’s assessment.  Furthermore, the applicant is wrong
         to maintain that he would not have been entitled to bring an appeal against the dismissal of his action for compensation relying
         on the same considerations.  Lastly, the principle of res judicata is a general principle common to the laws of the Member States, whose application in this instance could not in any circumstances
         be regarded as contrary to Article 47 of the Charter of Fundamental Rights of the European Union.
      
      24      It follows that, for the period running from October 2002 until 11 July 2007, the day on which Sison I, paragraph 1 above, was delivered, the principle of res judicata attaching to that judgment means that the applicant may not claim afresh, pursuant to Article 235 EC and Article 288 EC, compensation
         for damage corresponding to the damage in respect of which a claim for compensation on the same grounds has already been rejected
         by that judgment (see, to that effect, the orders of the Court of Justice of 28 November 1996 in Case C‑277/95 P Lenz v Commission [1996] ECR I‑6109, paragraphs 52 to 54, and of 9 June 2010 in Case C‑440/07 P Commission v Schneider Electric, not published in the ECR, paragraphs 52 and 53; judgments in Case T‑237/00 Reynolds v Parliament [2005] ECR-SC I‑A‑385 and II‑1731, paragraph 193, and of 15 October 2008 in Joined Cases T‑457/04 and T‑223/05 Camar v Commission, not published in the ECR, paragraph 79).
      
      25      The action for damages must therefore be dismissed as inadmissible inasmuch as it seeks compensation for damage allegedly
         caused by the acts challenged in the case giving rise to Sison I, paragraph 1 above.
      
       Substance
       Introductory observations on the conditions for the incurring of the Community’s non-contractual liability and on the effect
         of Sison II
      26      The applicant contends that the three conditions for the incurring of the Community’s non-contractual liability set forth
         in Article 235 EC and in the second paragraph of Article 288 EC have, in the circumstances of this case, been satisfied. In
         his view, the unlawfulness vitiating the measures contested in the present case constitutes a sufficiently serious breach
         of a rule of law intended to confer rights on individuals, and it has sufficiently directly caused him serious damage, which
         he details in four categories of damage, in addition to interest.
      
      27      The Council contends that none of the three conditions for the incurring of the Community’s non-contractual liability has,
         in the circumstances, been satisfied.
      
      28      It is to be borne in mind that, according to consistent case-law, the incurring of the Community’s non-contractual liability
         for the purpose of the second paragraph of Article 288 EC is conditional upon the satisfaction of a set of conditions, namely,
         the unlawfulness of the conduct of which the institutions are accused, the fact of damage and the existence of a causal link
         between that conduct and the damage complained of (see Joined Cases C‑120/06 P and C‑121/06 P FIAMM and FIAMM Technologies v Council and Commission [2008] ECR I‑6513, paragraph 106 and case-law cited; Case T‑351/03 Schneider Electric v Commission [2007] ECR II‑2237, paragraph 113; and Sison I, paragraph 1 above, paragraph 232).
      
      29      The cumulative nature of those conditions means that, if one of them is not satisfied, the action for damages must be dismissed
         in its entirety, and there is no need to examine the other conditions (Case C‑122/01 P T. Port v Commission [2003] ECR I‑4261, paragraph 30; Schneider Electric v Commission, paragraph 28 above, paragraph 120; and Sison I, paragraph 1 above, paragraph 233).
      
      30      In the circumstances of this case, the Court considers it expedient to examine first whether the condition relating to the
         unlawfulness of the Council’s conduct has been satisfied.
      
      31      As to this, it must be recalled that, according to settled case-law, a finding of the unlawfulness of a legal measure – like
         the measures challenged in the present case and found to be unlawful in the light of Article 2(3) of Council Regulation No
         2580/2001 of 27 December 2001 (OJ 2001 L 344, p. 70), and of Article 1(4) of Council Common Position 2001/931/CFSP of 27 December
         2001 on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93) – is not enough, however regrettable
         that unlawfulness may be, for it to be held that the condition for the incurring of the Community’s non-contractual liability
         relating to the unlawfulness of the institutions’ alleged conduct has been satisfied (see, to this effect, Case C‑282/05 P
         Holcim (Deutschland) v Commission [2007] ECR I‑2941, paragraph 47; Case T‑56/00 Dole Fresh Fruit International v Council and Commission [2003] ECR II‑577, paragraphs 72 to 75; and Case T‑212/03 MyTravel v Commission [2008] ECR II-1967, paragraphs 43 and 85).
      
      32      Indeed, according to the case-law, the action for damages was established as an autonomous form of action with a particular
         purpose to fulfil within the system of legal remedies and its exercise is subject to conditions dictated by its specific object
         (Joined Cases 197/80 to 200/80, 243/80, 245/80 and 247/80 Ludwigshafener Walzmühle Erling and Others v Council and Commission [1981] ECR 3211, paragraph 4; see also, to this effect, Case 175/84 Krohn Import-Export v Commission [1986] ECR 753, paragraph 32).  Whereas actions for annulment and for failure to act seek a declaration that a legally binding
         measure is unlawful or that such a measure has not been taken, an action for damages seeks compensation for damage resulting
         from a measure or from unlawful conduct, attributable to an institution (Joined Cases T‑3/00 and T‑337/04 Pitsiorlas v Council and ECB [2007] ECR II‑4779, paragraph 283). So, it is not the purpose of an action for damages to make good damage caused by all
         unlawfulness (Case T‑429/05 Artegodan v Commission [2010] ECR II‑491, paragraph 51).
      
      33      In order to satisfy the condition for the Community to incur non-contractual liability for the unlawfulness of the conduct
         of the institutions that is objected to, the case-law requires a sufficiently serious breach of a rule of law ‘intended to
         confer rights on individuals’ to be established (Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraph 42, and Holcim (Deutschland) v Commission, paragraph 31 above, paragraph 47; Sison I, paragraph 1 above, paragraph 234) or, in the older wording, of a rule of law ‘for the protection of the individual’ (Case
         C‑282/90 Vreugdenhil v Commission [1992] ECR I‑1937, paragraph 19, and Case C‑390/95 P Antillean Rice Mills and Others v Commission [1999] ECR I‑769, paragraphs 58 and 59), or, yet again, of a rule of law ‘intended to protect individuals’ (Case T‑4/01 Renco v Council ECR II‑171, paragraph 60).  The Court considers these three expressions to be mere variations on a single legal concept, which
         is expressed below by the formula ‘intended to confer rights on individuals’.
      
      34      This requirement of a sufficiently serious breach of Community law, within the meaning of Bergaderm and Goupil v Commission, paragraph 33 above, is intended, whatever the nature of the unlawful act at issue, to avoid the risk of having to bear the
         losses claimed by the persons concerned obstructing the institution’s ability to exercise to the full its powers in the general
         interest, whether that be in its legislative activity, or in that involving choices of economic policy or in the sphere of
         its administrative competence, without however thereby leaving individuals to bear the consequences of flagrant and inexcusable
         misconduct (see, to this effect, Schneider Electric v Commission, paragraph 28 above, paragraph 125; MyTravel v Commission, paragraph 31 above, paragraph 42; and Artegodan v Commission, paragraph 32 above, paragraph 55).
      
      35      The decisive test for a finding that this requirement has been satisfied is whether the institution concerned has manifestly
         and gravely disregarded the limits of its discretion (Bergaderm and Goupil v Commission, paragraph 33 above, paragraph 43; Holcim (Deutschland) v Commission, paragraph 31 above, paragraph 47; and Sison I, paragraph 1 above, paragraph 235).  The determining factor in deciding whether there has been such an infringement is therefore
         the discretion available to the institution concerned (Case C‑198/03 P Commission v CEVA and Pfizer [2005] ECR I‑6357, paragraph 66 and case-law cited).  It is apparent from the criteria of the case-law that, if the institution
         in question has only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient
         to establish the existence of a sufficiently serious breach (Bergaderm and Goupil v Commission, paragraph 33 above, paragraph 44; Case C‑312/00 P Commission v Camar and Tico [2002] ECR I‑11355, paragraph 54; Case C‑440/07 P Commission v Schneider Electric [2009] ECR I‑6413, paragraph 160; and Joined Cases T‑198/95, T‑171/96, T‑230/97, T‑174/98 and T‑225/99 Comafrica and Dole Fresh Fruit Europe v Commission [2001] ECR II‑1975, paragraph 134).
      
      36      However, the case-law does not establish any automatic link between, on the one hand, the fact that the institution concerned
         has no discretion and, on the other, the classification of the infringement as a sufficiently serious breach (Artegodan v Commission, paragraph 32 above, paragraph 59).
      
      37      The extent of the discretion enjoyed by the institution concerned, although determinative, is not the only yardstick.  On
         this point, the Court of Justice has many times recalled that the system of rules it has developed with regard to the second
         paragraph of Article 288 EC also takes into account, in particular, the complexity of the situations to be regulated and the
         difficulties in applying or interpreting the texts (Bergaderm and Goupil v Commission, paragraph 33 above, paragraph 40; Commission v Camar and Tico, paragraph 35 above, paragraph 52; Commission v CEVA and Pfizer, paragraph 35 above, paragraph 62; Holcim (Deutschland) v Commission, paragraph 31 above, paragraph 50; Commission v Schneider Electric, paragraph 35 above, paragraph 161, and also MyTravel v Commission, paragraph 31 above, paragraph 38).
      
      38      In particular, when the Commission’s discretion is reduced (Case T-28/03 Holcim (Deutschland) v Commission [2005] ECR II‑1357, paragraph 100) or considerably reduced, or even non-existent (Commission v Schneider Electric, paragraph 35 above, paragraph 166), the Court of Justice has upheld the validity of the General Court’s examination of the
         complexity of the situations to be regulated in order to determine whether the alleged infringement of Community law is sufficiently
         serious (Case C‑282/05 P Holcim (Deutschland) v Commission, paragraph 31 above, paragraph 51, and Commission v Schneider Electric, paragraph 35 above, paragraph 160].
      
      39      It follows that only the finding of an irregularity that an administrative authority, exercising ordinary care and diligence,
         would not have committed in similar circumstances, can render the Community liable (Artegodan v Commission, paragraph 32 above, paragraph 62).
      
      40      It is, consequently, for the Union judicature, once it has first determined whether the institution concerned enjoyed any
         discretion, next to take into consideration the complexity of the situations to be regulated, any difficulties in applying
         or interpreting the legislation, the clarity and precision of the rule infringed, and whether the error made was inexcusable
         or intentional (see, to this effect, Comafrica and Dole Fresh Fruit Europe v Commission, paragraph 35 above, paragraphs 138 and 149, and Case T‑364/03 Medici Grimm v Council [2006] ECR II‑79, paragraphs 79 and 87; see also, by analogy, with regard to the non-contractual liability of a Member State
         for infringement of Community law, Case C‑424/97 Haim [2000] ECR I‑5123, paragraphs 41 to 43).  On any view, an infringement of Community law is sufficiently serious if it has
         persisted despite a judgment finding the infringement in question to be established, or a preliminary ruling or settled case-law
         of the Court on the matter from which it is clear that the conduct in question constituted an infringement (see, by analogy,
         Case C-524/04 Test Claimants in the Thin Cap Group Litigation [2007] ECR I‑2107, paragraph 120 and case-law cited).
      
      41      In the instant case, the applicant pleads infringement of Article 2(3) of Regulation No 2580/2001, read in conjunction with
         Article 1(4) of Common Position 2001/931, on the one hand, and breach of his fundamental rights, on the other, in particular,
         breach of the right to respect for his private life and of the right to respect for his property.
      
      42      The Council maintains, first, that Article 2(3) of Regulation No 2580/2001 and Article 1(4) of Common Position 2001/931 are
         not rules of law conferring rights on individuals and that, in any case, their breach is not serious enough in the circumstances
         of the case.  Secondly, it maintains that breach of the applicant’s fundamental rights has not been satisfactorily proved.
      
      43      It is important to note, in this regard, that the plea alleging infringement of Article 2(3) of Regulation No 2580/2001 and
         Article 1(4) of Common Position 2001/931 was accepted by the Court in Sison II, paragraph 1 above, paragraphs 122 and 138.  This infringement must, therefore, be considered to have been established, as
         the parties recognise.  In contrast, the Court rejected the pleas alleging breach of the duty to state reasons (Sison II, paragraph 1 above, paragraph 71) and a manifest error of assessment (Sison II, paragraph 1 above, paragraphs 89 and 122).  Moreover, the Court did not, in Sison II, paragraph 1 above, rule on the pleas alleging breach of the principle of proportionality and breach of general principles
         of Community law and of fundamental rights (Sison II, paragraph 1 above, paragraphs 123 and 138).
      
      44      Consequently, it must first be ascertained, in the light of the criteria laid down in the case-law and set forth above, whether
         the Council, in disregard of Article 2(3) of Regulation No 2580/2001 and Article 1(4) of Common Position 2001/931, has breached,
         sufficiently seriously, rules of law intended to confer rights on individuals.  It has then to be ascertained whether the
         alleged breach of the applicant’s fundamental rights has been established and, if so, whether the breach is sufficiently serious.
      
       Whether the Community has incurred liability by reason of infringement of Article 2(3) of Regulation No 2580/2001 and Article
         1(4) of Common Position 2001/931
      
      45      In the light of the Council’s arguments, it must in the first place be considered whether those provisions are indeed intended
         to confer rights on individuals, for the purpose of the settled case-law cited at paragraph 33 above, as the applicant contends.
      
      46      Contrary to what is maintained by the applicant, the judgment in Case C‑229/05 P PKK and KNK v Council [2007] ECR I‑439, paragraphs 110 and 111, offers no guidance of any relevance to the present case.  That judgment concerned
         an action for annulment, and the Court of Justice expressed no view at all as to whether the provisions at issue in the circumstances
         of that case were intended to confer rights on individuals.
      
      47      Nevertheless, it follows from the case-law that that condition is met if the rule of law breached, while in the main concerning
         interests of a general nature, also protects the individual interests of the persons concerned (see, to this effect, Joined
         Cases 5/66, 7/66 and 13/66 to 24/66 Kampffmeyer and Others v Commission [1967] ECR 245, 263; Case T‑209/00 Lamberts v Ombudsman [2002] ECR II-2203, paragraph 87; and Artegodan v Commission, paragraph 32 above, paragraph 72).
      
      48      Contrary to what is contended by the Council, which refers in particular to Case T‑256/07 People’s Mojahedin Organization of Iran v Council [2008] ECR II‑3019 (‘PMOI I’), the provisions at issue in the instant case are not designed to delimit the respective competences of the Community and
         the Member States, in connection with the two-level cooperation mechanism provided by the fund-freezing procedure established
         by Common Position 2001/931, by determining which national decisions may give rise to the adoption of a Community measure
         (see, in this regard, PMOI I, paragraph 133).
      
      49      In the system set up by Regulation No 2580/2001, which is intended to give effect, at Community level, to the specific restrictive
         measures taken in respect of certain persons and entities with a view to combating terrorism described in Common Position
         2001/931, Article 2(3) of that regulation, in conjunction with Article 1(4) of the Common Position, sets out instead the statutory
         conditions on which such measures may be taken by the Community, whose powers in this sphere are considered to have been established
         (Sison II, paragraph 1 above, paragraph 91 et seq.).  They are not, therefore, merely rules conferring powers or relating to the legal
         basis, like those at issue in the cases pleaded by the Council or in the case giving rise to Artegodan v Commission, paragraph 32 above.  The decisions in those cases are not, consequently, relevant in the circumstances of this case.
      
      50      Moreover, it is to be observed, as the applicant has done, that those restrictive measures, consisting in the freezing of
         all the assets of the persons concerned, quite plainly amount to interference by official authority with the exercise of the
         fundamental rights of the persons to whom those measures are applied.  Although whether that interference was legitimate in
         the circumstances is a separate matter that will, if necessary, have to be considered in connection with the examination of
         the alleged breach of those rights, the very fact that such interference is not acceptable except on certain conditions, laid
         down in instruments relating to the protection of human rights (see, for example, Article 8(2) of the European Convention
         for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, ‘the ECHR’, so far as concerns
         the right to respect for private life), entails certain consequences for the status of the rules that give effect to those
         conditions.
      
      51      So, although Regulation No 2580/2001, taken together with Common Position 2001/931, is intended essentially to permit the
         Council to impose certain restrictions on individuals’ rights, with a view to, and in the name of, combating international
         terrorism, the provisions of that regulation and that common position, which set forth exhaustively the conditions in which
         such restrictions are permitted, such as Article 2(3) of the regulation read in conjunction with Article 1(4) of the common
         position, are, a contrario, intended essentially to protect the interests of the individuals concerned, by limiting the cases of application, and the
         extent or degree of the restrictive measures that may lawfully be imposed on those individuals.
      
      52      Such provisions thus ensure that the individual interests of the persons liable to be concerned are protected and they are,
         therefore, to be considered to be rules of law intended to confer rights on individuals, for the purpose of the settled case-law
         cited at paragraph 33 above.  If the fundamental conditions set out in Article 2(3) of the regulation, read in conjunction
         with Article 1(4) of the Common Position, are not satisfied, the individual concerned is entitled not to have the measures
         in question imposed on him.  Such a right necessarily implies that the individual on whom restrictive measures are imposed
         in circumstances not provided for by the provisions in question may seek compensation for the harmful consequences of those
         measures, if it should prove that their imposition was founded on a sufficiently serious breach of the substantive rules applied
         by the Council (see, by analogy, MyTravel v Commission, paragraph 31 above, paragraph 48).
      
      53      In the second place, with regard to the condition relating to a sufficiently serious breach of those rules, the extent of
         the discretion enjoyed by the Council in the circumstances of the present case must be determined.
      
      54      It must be pointed out that, although the Council has broad discretion as to what matters to take into consideration for the
         purpose of adopting economic and financial sanctions on the basis of Articles 60 EC, 301 EC and 308 EC, consistent with a
         common position adopted on the basis of the common foreign and security policy, concerning in particular the assessment of
         the considerations of appropriateness on which such decisions are based (Sison II, paragraph 1 above, paragraph 97 and case-law cited), it is, in contrast, bound by the statutory conditions for the application
         of a fund-freezing measure to a person, group or entity, as determined by Article 2(3) of Regulation No 2580/2001, read in
         conjunction with Article 1(4) of Common Position 2001/931 (Sison II, paragraph 1 above, paragraph 92 and case-law cited).
      
      55      Under Article 2(3) of Regulation No 2580/2001, the Council, acting by unanimity, is to establish, review and amend the list
         of persons, groups and entities to whom and to which that regulation applies, in accordance with the provisions laid down
         in Article 1(4) to (6) of Common Position 2001/931.  The list in question must, therefore, in accordance with Article 1(4)
         of Common Position 2001/931, 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 that decision concerns the instigation of investigations or prosecution for a terrorist act, or an attempt to perpetrate,
         participate in or facilitate such an act, based on serious and credible evidence or clues [sic], or condemnation [sic] for
         such deeds.  ‘Competent authority’ means a judicial authority or, where judicial authorities have no competence in that area,
         an equivalent authority in that sphere.  In addition, the names of the persons and entities appearing in that list must be
         reviewed at regular intervals, and at least once every six months, to ensure that there are still grounds for keeping them
         in the list, in accordance with Article 1(6) of Common Position 2001/931.
      
      56      At paragraph 93 of Sison II, paragraph 1 above, the General Court recalled that it had, in earlier judgments, inferred from those provisions that verification
         that there is a decision of a national authority meeting the definition in Article 1(4) of Common Position 2001/931 is an
         essential precondition for the adoption, by the Council, of an initial decision to freeze funds, whereas verification of the
         sequels to that decision at the national level is imperative in the context of the adoption of a subsequent decision to freeze
         funds.
      
      57      It is apparent from this settled case-law of the General Court that there is no margin of appreciation for the Council when
         it determines whether the matters of law and of fact, that may be preconditions for the application of a fund-freezing measure
         to a person, group or entity, as defined by Article 2(3) of Regulation No 2580/2001 in conjunction with Article 1(4) of Common
         Position 2001/931, have been established in any given case.  This holds, most particularly, for the verification of the existence
         of precise information or material in the relevant file indicating that a decision has been taken by a national authority
         with regard to the person concerned that meets the definition laid down in Article 1(4) of Common Position 2001/931 and, at
         a later stage, for the verification of the action taken following that decision at national level (see Sison II, paragraph 1 above, paragraph 96 and case-law cited, relating to the cases concerning the freezing of the funds of the Organisation
         des Modjahedines du peuple d’Iran/People’s Mojahedin Organization of Iran).
      
      58      However, contrary to the claims made by the applicant, that fact alone is not enough for it to be considered that the breach
         of those provisions is in the instant case sufficiently serious for the Community’s liability to be incurred.  As has been
         noted (see paragraphs 37 to 39 above), the court must also take into consideration, in particular, the legal and factual complexity
         of the situations to be regulated and the difficulties in applying or interpreting the texts.
      
      59      In this instance, it is also to be pointed out that the restrictive measures provided for by Regulation No 2580/2001 and Common
         Position 2001/931 are designed to give effect, at Community level, to Resolution 1373 (2001) of the United Nations Security
         Council of 28 September 2001 laying down strategies to combat terrorism, in particular the financing of terrorism, by all
         possible means (Sison I, paragraph 1 above, paragraphs 4 to 12).
      
      60      As the Court of Justice has already held in connection with another Community regime of restrictive measures of an economic
         nature also giving effect to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations,
         the fight by all means, in accordance with that Charter, against the threats to international peace and security posed by
         acts of terrorism, constitutes a fundamental objective of general interest for the international community, which justifies
         in principle the adoption of restrictive measures, such as those at issue in the present case, in respect of certain persons
         (Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat v Council and Commission [2008] ECR I‑6351, ‘Kadi on appeal’, paragraphs 361 to 363).  The fundamental importance of this objective of general interest and the particular constraints
         imposed by its pursuit ‘by all means’ on the institutions of the Union concerned, at the urgent request of the United Nations
         Security Council, are also factors that must necessarily be taken into consideration, in accordance with the case-law cited
         at paragraph 34 above.
      
      61      Consequently, it is for the General Court to examine the legal and factual complexity of the situation to be regulated, in
         the applicant’s particular case, and the difficulties in applying or interpreting the relevant provisions of Regulation No
         2580/2001 and of Common Position 2001/931, taking into account, in particular, the importance of the objectives of general
         interest pursued, in order to ascertain whether the error of law committed by the Council is an irregularity that an administrative
         authority exercising ordinary care and diligence would not have committed in similar circumstances (see paragraph 39 above).
      
      62      In those circumstances, although the infringement of Article 2(3) of Regulation No 2580/2001, read in conjunction with Article
         1(4) of Common Position 2001/931, has been clearly established (Sison II, paragraph 1 above, paragraph 113), it is important to take into consideration the particular difficulties attaching to the
         interpretation and application, in this case, of those provisions.  The Court considers that the difficulties attaching to
         the literal, systematic interpretation of the conditions for the adoption of a fund-freezing measure, laid down in those provisions,
         in the light of the objectives of general interest pursued, could reasonably explain, in the absence of well-established precedent
         in the case-law on the point, the error of law made by the Council in applying those provisions, inasmuch as it wrongly relied
         on the judgment of the Raad van State (Council of State, Netherlands) of 21 February 1995 (‘the judgment of the Raad van State’)
         and on the decision of the Arrondissementsrechtbank te ’s‑Gravenhage (The Hague District Court, ‘the Rechtbank’), Sector Bestuursrecht,
         Rechtseenheidskamer Vreemdelingenzaken (Administrative Law Section, Chamber responsible for the uniform application of the
         law, cases involving aliens) of 11 September 1997 (‘the decision of the Rechtbank’).
      
      63      It must be stated at the outset, that the actual wording of those provisions is particularly confused.  So, according to Article
         1(4) of Common Position 2001/931, ‘competent authority’ means a judicial authority, or, where judicial authorities have no
         competence in the area covered by this paragraph, an equivalent competent authority in that area.  No definition is given
         of what might be a ‘competent authority’ equivalent to a judicial authority with competence in ‘the area covered by [this]
         paragraph’, namely, the field of decisions to instigate investigations or to prosecute, in connection with terrorist activity.
         It is, furthermore, hard to imagine that the judicial authorities of any Member State whatsoever of the European Union, established
         in a State governed by the rule of law and a Member of a Union governed by the rule of law, may ‘have no competence’ in this
         area.  Likewise, as a corollary, it is not easy either to ascertain the meaning of ‘instigation of investigations or prosecution’
         for acts of terrorism or of ‘condemnation for such deeds’.  Furthermore, it is not made clear whether those provisions are
         to be interpreted by reference and renvoi to national law or whether they possess an autonomous meaning in European Union law, which it is then for the Union judicature
         alone to determine.  In either case, it is not apparent that the differing language versions of these provisions cover the
         same national factual situations.  Thus, in certain language versions, the terms used may be those of criminal law sensu stricto, whereas in other language versions their interpretation may fall outside the strictly criminal context.
      
      64      In addition, it is to be noted that, in the present case, the Council’s liability is not questioned as the legislative authority,
         author of the provisions in question, but rather as that of an administrative authority, responsible for putting them into
         effect.
      
      65      The aforementioned difficulties in interpreting the provisions in question have necessarily given rise to considerable difficulties
         in giving them effect, as shown by the copious case-law of the General Court on cases of this particular kind (see, in addition
         to Sison I and Sison II, paragraph 1 above, Case T‑228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II‑4665, (‘OMPI’); the judgment of 11 July 2007 in Case T‑327/03 Al-Aqsa v Council (not published in the ECR, ‘Al-Aqsa I’); PMOI I, paragraph 48 above; Case T‑284/08 People’s Mojahedin Organization of Iran v Council [2008] ECR II‑3487 (‘PMOI II’), at present under appeal in Case C‑27/09 P; the judgment of 2 September 2009 in Joined Cases T‑37/07 and T‑323/07 El Morabit v Council (not published in the ECR); Case T‑348/07 Al-Aqsa v Council [2010] ECR II‑0000 (‘Al-Aqsa II’); and Case T‑49/07 Fahas v Council [2010] ECR II‑0000).  It is thus only through its consideration of some 10 cases, spread over several years, that the Court
         has by degrees constructed a rational, consistent framework for the interpretation of the provisions at issue. This process
         of gradual development of the case-law is especially apparent from paragraph 91 et seq. of Sison II, paragraph 1 above, which summarise the earlier judgments in this sphere.
      
      66      More specifically, it must first of all be observed that in Sison I, paragraph 1 above, the General Court gave no indication of whether the judgment of the Raad van State and the decision of
         the Rechtbank could be regarded as decisions taken by a competent national authority within the meaning of Article 2(3) of
         Regulation No 2580/2001 and Article 1(4) of Common Position 2001/931 (see, in this respect, Sison I, paragraph 1 above, paragraph 242).  That judgment could not, therefore, serve as a precedent for the Council, for the purpose
         of the case-law cited at paragraph 40 above, in the process of adopting the acts contested in this instant case.
      
      67      In the present case, in contrast, the Court dwelt at length on the examination of the content, meaning and context of the
         decisions of the national authorities which were the basis for the contested acts, namely, the judgment of the Raad van State
         and the decision of the Rechtbank, at paragraphs 46 to 70 of Sison I, paragraph 1 above, and paragraphs 88, 90 and 100 to 106 of Sison II, paragraph 1 above, to which reference is now made.
      
      68      With regard to the classification of those national decisions for the purposes of Article 2(3) of Regulation No 2580/2001
         and Article 1(4) of Common Position 2001/931, which was undertaken at paragraph 107 et seq. of Sison II, paragraph 1 above, it is to be noted that, at paragraph 111 of Sison II, the Court for the first time set forth certain general criteria for the interpretation and application of those provisions.
         Thus, it ‘consider[ed]’ that, having regard both to the wording, context and objectives of the provisions at issue in this
         case and to the major part played by the national authorities in the fund-freezing process provided for in Article 2(3) of
         Regulation No 2580/2001, a decision to ‘instigat[e] … investigations or prosecut[e]’ must, if the Council is to be able validly
         to invoke it, form part of national proceedings seeking, directly and principally, the imposition on the person concerned
         of measures of a preventive or punitive nature, in connection with the combating of terrorism and by reason of that person’s
         involvement in terrorism.  The Court made it clear that that requirement is not satisfied by a decision of a national judicial
         authority ruling only incidentally and indirectly on the possible involvement of the person concerned in such activity, in
         relation to a dispute concerning, for example, rights and duties of a civil nature.
      
      69      In the present case, at paragraph 113 of Sison II, paragraph 1 above, the Court deduced, from the criterion of restrictive interpretation that it had just identified, that
         the procedures involving the applicant before the Raad van State and the Rechtbank were in no way directed at punishing his
         possible participation in past acts of terrorism, but were solely concerned with the review of the lawfulness of the decision
         of the Dutch Secretary of State for Justice refusing to grant him refugee status and a residence permit in the Netherlands.
      
      70      Nevertheless, the Court also acknowledged, at paragraph 114 of Sison II, paragraph 1 above, that the Raad van State and the Rechtbank, in the course of those procedures, had studied the file of
         the Netherlands internal security service (‘the BVD’) relating to the applicant’s alleged involvement in certain terrorist
         activities in the Philippines, although they did not decide for that reason to open an investigation into those facts, still
         less to instigate a prosecution of the applicant.
      
      71      Moreover, it is to be stressed that, contrary to what the applicant maintains, the refusal of the Dutch Secretary of State
         for Justice to grant him refugee status and a residence permit in the Netherlands, on the ground in essence that he had, from
         the Netherlands, led or attempted to lead the New People’s Army (‘the NPA’), the military wing of the Communist Party of the
         Philippines (‘the CPP’) responsible for a great number of acts of terrorism in the Philippines, was approved in substance
         by the Rechtbank, following the judgment of the Raad van State and after that court had studied the BVD file (see Sison I, paragraph 1 above, paragraphs 63, 66 and 68 to 70).  The Council did not, therefore, make any error of assessment in referring
         to those factual circumstances, or disregard the limits set on its discretionary power.
      
      72      Lastly, it is to be borne in mind that in Sison II, paragraph 1 above (paragraphs 88, 89 and 122), the Court rejected the applicant’s plea alleging a manifest error of assessment
         of the facts.  In particular, it found that the factual allegations included in the summaries of reasons annexed to the contested
         acts were properly supported by material in the file submitted to it and, more particularly, by the findings of fact made
         by the Raad van State and the Rechtbank in their absolute discretion.  Those factual allegations concern the applicant’s involvement
         in acts of terrorism committed in the Philippines, by reason of his leading role in the CPP and the NPA, and the contacts
         he had had with the leaders of other terrorist organisations (see, in this regard, paragraphs 46 to 70 of Sison I, paragraph 1 above, also reproduced at paragraph 106 of Sison II, paragraph 1 above).
      
      73      In those circumstances, having regard first, to the complexity of the legal and factual assessments required in order to settle
         the present case, second, to the difficulties in interpreting and applying Article 2(3) of Regulation No 2580/2001, read in
         conjunction with Article 1(4) of Common Position 2001/931, in the circumstances of the case and given the lack of well-established
         precedent in the case-law before judgment was delivered in Sison II, paragraph 1 above, and, third, to the fundamental importance of the objectives of general interest linked to the combating
         of international terrorism pursued by that regulation, it must be held that the Council’s infringement of those provisions,
         while clearly established, may be accounted for by the particular constraints and responsibilities borne by that institution,
         and that it constitutes an irregularity that an administrative authority exercising ordinary care and diligence could have
         committed if placed in similar circumstances.
      
      74      In consequence, the Court considers that, in the circumstances of the case, the infringement of Article 2(3) of Regulation
         No 2580/2001 and Article 1(4) of Common Position 2001/931, although clearly established, cannot be regarded as a sufficiently
         serious breach of Community law, so as to incur the non-contractual liability of the Community to the applicant.
      
       Whether the liability of the Community has been incurred by reason of the alleged breach of the applicant’s fundamental rights
      75      It is, here, not in dispute that the fundamental rights that the applicant claims have been breached constitute rules of law
         intended to confer rights on individuals.  That breach, should it be proved, would therefore be such, if it were sufficiently
         serious, as to incur the non-contractual liability of the Community.
      
      76      The applicant does not raise an objection of the illegality as such, having regard to fundamental rights, of the general fund-freezing
         regime given effect by Regulation No 2580/2001, but only of the incorrect application of that regulation in the particular
         circumstances of the case, which gave rise to that breach.
      
      77      Moreover, the fact that such a regime, or similar regimes flowing from the implementation of other resolutions of the United
         Nations Security Council, is in principle compatible with the fundamental rights of the persons affected is clearly established
         in the case-law of the Court of Justice and the General Court (see, with regard to the right to property, Kadi on appeal, paragraph 60 above, paragraphs 361 to 366, and Joined Cases T‑246/08 and T‑332/08 Melli Bank v Council [2009] ECR II‑2629, paragraphs 111 and 112; with regard to respect for private and family life, Case T‑253/02 Ayadi v Council [2006] ECR II‑2139, paragraph 126, not reversed by the Court on appeal; with regard to the presumption of innocence, El Morabit v Council, paragraph 65 above, paragraph 40, and Fahas v Council, paragraph 65 above, paragraphs 64 to 68).
      
      78      It is not, therefore, the imposition of the restrictive measures provided for by Regulation No 2580/2001, per se, that is
         claimed to constitute breach of the applicant’s fundamental rights, but only the fact that those measures were imposed on
         him, by the contested acts, in conditions not consistent with those laid down, specifically in order to limit the opportunities
         of interference by public authorities in the exercise of those rights (see paragraphs 50 and 51 above), by Article 2(3) of
         Regulation No 2580/2001, read in conjunction with Article 1(4) of Common Position 2001/931.
      
      79      It has been held above that while the incompatibility of the contested acts with the conditions laid down in Article 2(3)
         of Regulation No 2580/2001 does amount to illegality, it may not, however, be considered to be a breach of Community law sufficiently
         serious to incur the non-contractual liability of the Community vis-à-vis the applicant.
      
      80      The alleged breach of the applicant’s fundamental rights being inseparable from that illegality and arising from it alone,
         it must therefore be concluded that that breach is also not sufficiently serious, in the particular circumstances of the case,
         to incur the non-contractual liability of the Community (see, by analogy, Artegodan v Commission, paragraph 32 above, paragraphs 131, 132 and 136).
      
      81      It may be added here that neither the Charter of Fundamental Rights of the European Union nor the ECHR, which both guarantee
         the right to effective judicial protection, preclude that the Community’s non-contractual liability be made subject, in circumstances
         such as those of this case, to the finding of a sufficiently serious breach of the fundamental rights invoked by the applicant.
         With more particular regard to the rights guaranteed by Protocol No 1 to the ECHR, the European Court of Human Rights has,
         furthermore, taken account of ‘the various inherent limitations imposed by the elements of the action to be established’ (Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v. Ireland, ECHR judgment of 30 June 2005, Reports of Judgments and Decisions, 2005-VI, §§ 88, 163 and 165).
      
      82      It follows from all the foregoing considerations that, in the present case, the condition relating to the Council’s allegedly
         unlawful conduct for the incurring of the Community’s non-contractual liability has not been satisfied.
      
      83      The action must, therefore, be dismissed, and there is no need to examine the other conditions for the incurring of the Community’s
         non-contractual liability.
      
       Costs
      84      Under Article 87(1) of the Rules of Procedure, a decision as to costs is to be given in the final judgment or in the order
         closing the proceedings.  In accordance with that provision, costs were reserved in Sison II, paragraph 1 above.
      
      85      Article 87(3) of the Rules of Procedure provides that, where each party succeeds on some and fails on other heads, or where
         the circumstances are exceptional, the General Court may order costs to be shared or decide that each party is to bear its
         own costs.  In addition, Article 87(4) of those Rules provides that those Member States and institutions that intervened in
         the proceedings are to bear their own costs.
      
      86      In the instant case, the Council has failed on the heads of claim for annulment, but the applicant has failed on the heads
         of claim for compensation.  The applications for annulment and for compensation having been dealt with separately throughout
         the proceedings, those provisions will find equitable application in a decision that the Council is to pay all the costs of
         the parties to the main proceedings relating to the action for annulment, while the applicant is to pay all the costs of the
         parties to the main proceedings relating to the action for compensation.  In addition, it must be decided that the Kingdom
         of the Netherlands, the United Kingdom and the Commission are to bear their own costs.
      
      On those grounds,
      THE GENERAL COURT (Second Chamber, Extended Composition)
      hereby:
      1.      Dismisses the action for compensation;
      2.      Orders the Council of the European Union to pay, so far as the costs relating to the action for annulment are concerned, the
            costs incurred by Jose Maria Sison in addition to its own costs;
      3.      Orders Mr Sison to pay, so far as the costs relating to the action for compensation are concerned, the costs incurred by the
            Council in addition to his own costs;
      4.      Orders the Kingdom of the Netherlands, the United Kingdom of Great Britain and Northern Ireland and the Commission to bear
            their own costs.
      
               Forwood
            
            
               Dehousse
            
            
               Prek
            
         
               Schwarcz
            
             
            
                     Popescu
            
         Delivered in open court in Luxembourg, on 23 November 2011.
      [Signatures]
      *Language of the case: English.