CELEX: 62004CC0354
Language: en
Date: 2006-10-26
Title: Joined opinion of Mr Advocate General Mengozzi delivered on 26 October 2006. # Gestoras Pro Amnistía, Juan Mari Olano Olano and Julen Zelarain Errasti v Council of the European Union. # Appeal - European Union - Police and judicial cooperation in criminal matters - Common Positions 2001/931/CFSP, 2002/340/CFSP and 2002/462/CFSP - Measures concerning persons, groups and entities involved in terrorist acts - Action for damages - Jurisdiction of the Court of Justice. # Case C-354/04 P. # Segi, Araitz Zubimendi Izaga and Aritza Galarraga v Council of the European Union. # Appeal - European Union - Police and judicial cooperation in criminal matters - Common Positions 2001/931/CFSP, 2002/340/CFSP and 2002/462/CFSP - Measures concerning persons, groups and entities involved in terrorist acts - Jurisdiction of the Court of Justice. # Case C-355/04 P.

OPINION OF ADVOCATE GENERAL
      MENGOZZI
      delivered on 26 October 2006 1(1)
      
      Case C-354/04 P
      Gestoras Pro Amnistía
      Juan Mari Olano Olano
      Julen Zelarain Errasti
      v
      Council of the European Union
      and Case C-355/04 P
      Segi
      Araitz Zubimendi Izaga
      Aritza Galarraga
      v
      Council of the European Union
      (European Union – Police and judicial cooperation in criminal matters – Measures to combat terrorism – Common Position 2001/931/CFSP – Measures relating to persons, groups and entities involved in terrorist acts – Action for damages – Jurisdiction of the Community court)1.     By orders of 7 June 2004 made in Case T‑333/02 Gestoras Pro Amnistía and Others v Council (not published in the ECR) and Case T‑338/02 Segi and Others v Council [2004] ECR II‑1647 (‘the contested orders’), the Court of First Instance dismissed the actions brought by the organisations
         Gestoras Pro Amnistía and Segi and their respective spokespersons against the Council of the European Union for compensation
         for damage allegedly suffered as a result of the inclusion of Gestoras Pro Amnistía and Segi on the list of persons, groups
         and entities to which Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to
         terrorism applies. (2)
      
      2.     The Court is seised of two appeals against the aforesaid orders lodged by the same parties as brought the actions at first
         instance (Gestoras Pro Amnistía and Messrs J.M. Olano Olano and J. Zelarain Errasti in Case C‑354/04 P, and Segi and Messrs
         A. Zubimendi Izaga and A. Galarraga in Case C‑355/04 P).
      
      I –  Facts
      3.     The factual background to the disputes, which is described in broadly similar terms in the contested orders, can be set out
         as follows.
      
      4.     According to the allegations made by the applicants in Case T‑333/02, Gestoras Pro Amnistía is an organisation based in Hernani
         (Spain) whose purpose is to defend human rights in the Basque territory, in particular those of political prisoners and exiles,
         and whose spokespersons are Messrs Olano Olano and Zelarain Errasti.
      
      5.     According to the allegations made by the applicants in Case T‑338/02, Segi is an organisation established in Bayonne (France)
         and Donostia (Spain), which has the aim of supporting the claims of Basque youth and defending Basque identity, culture and
         language, and whose spokespersons are Messrs Zubimendi Izaga and Galarraga.
      
      6.     On 28 September 2001 the Security Council of the United Nations (‘the Security Council’) adopted Resolution 1373 (2001), in
         which it decided, in particular, that all States are to afford one another the greatest measure of assistance in connection
         with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance
         in obtaining evidence in their possession necessary for the proceedings.
      
      7.     By orders of 2 and 19 November 2001, the central investigating judge No 5 at the Audiencia Nacional (National High Court),
         Madrid (Spain), ordered the arrest of the presumed leaders of Gestoras Pro Amnistía, including its two spokespersons, and
         declared the activities of Gestoras Pro Amnistía to be illegal on the ground that it was an integral part of the Basque separatist
         organisation ETA. Gestoras Pro Amnistía challenged the second of these orders.
      
      8.     On 27 December 2001 the Council of the European Union (‘the Council’), considering that it was necessary to adopt further
         measures in addition to those previously taken in order to implement the aforesaid Security Council resolution, adopted Common
         Position 2001/931 on the basis of Articles 15 EU and 34 EU, which had been inserted into Title V (‘Provisions on a common
         foreign and security policy’) and Title VI (‘Provisions on police and judicial cooperation in criminal matters’) respectively
         of the EU Treaty.
      
      9.     Articles 1 and 4 of Common Position 2001/931 provide as follows:
      ‘Article 1
      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.
      
      …
      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.’
      
      ‘Article 4
      Member States shall, through police and judicial cooperation in criminal matters within the framework of Title VI of the Treaty
         on European Union, afford each other the widest possible assistance in preventing and combating terrorist acts. To that end
         they shall, with respect to enquiries and proceedings conducted by their authorities in respect of any of the persons, groups
         and entities listed in the Annex, fully exploit, upon request, their existing powers in accordance with acts of the European
         Union and other international agreements, arrangements and conventions which are binding upon Member States.’
      
      10.   Point 2 of the Annex to Common Position 2001/931 lists, under ‘groups and entities’:
      ‘* – Euskadi Ta Askatasuna/Tierra Vasca y Libertad/Basque Fatherland and Liberty (E.T.A.)
      (The following organisations are part of the terrorist group E.T.A.: K.a.s., Xaki; Ekin, Jarrai-Haika-Segi, Gestoras Pro Amnistía.)’.
      11.   The footnote to the Annex states that ‘[p]ersons marked with an * shall be the subject of Article 4 only’.
      12.   The Council declaration annexed to the minutes on the adoption of Common Position 2001/931 (‘the Council declaration concerning
         the right to compensation’) states:
      
      ‘The Council recalls regarding Article 1(6) of Common Position [2001/931] that in the event of any error in respect of the
         persons, groups or entities referred to, the injured party shall have the right to seek judicial redress.’ (3)
      
      13.   By orders of 5 February and 11 March 2002, the central investigating judge No 5 at the Audiencia Nacional, Madrid, declared
         Segi’s activities illegal on the ground that it was an integral part of the Basque separatist organisation ETA and ordered
         the arrest of certain of Segi’s presumed leaders.
      
      14.   By a decision of 23 May 2002, (4) the European Court of Human Rights dismissed as inadmissible the actions brought by the appellants against the 15 States
         that were then members of the European Union with regard to Common Position 2001/931 on the ground that the situation complained
         of did not entitle them to be regarded as victims of an infringement of the European Convention for the Protection of Human
         Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (‘the ECHR’).
      
      15.   On 2 May and 17 June 2002 the Council adopted, under Articles 15 EU and 34 EU, Common Positions 2002/340/CFSP (5) and 2002/462/CFSP (6) updating Common Position 2001/931. The annexes to those two common positions contain the updated list of persons, groups
         and entities to which Common Position 2001/931 applies, and in which the names of Gestoras Pro Amnistía and Segi still appear,
         worded in the same way as in the list annexed to Common Position 2001/931.
      
      16.   It should be added that Gestoras Pro Amnistía and Segi applied to the Council for access to the documents on which it had
         based its decision to include them in the list annexed to Common Position 2001/931. The Secretary-General of the Council sent
         Gestoras Pro Amnistía and Segi a series of documents relating to that common position. As they considered that the documents
         in question did not relate to them specifically and personally, the two associations made a further request to the Council,
         which that institution rejected by letter of 21 May 2002, stating that the information needed to prepare the list annexed
         to the common position had been returned to the national delegations concerned after they had been examined and the resulting
         decisions taken.
      
      17.   In addition, the appellants in Case C-355/04 P alleged, in the course of the proceedings, that, by a judgment of 20 June 2005,
         the Fourth Criminal Division of the Audiencia Nacional, Madrid, before which the action relating to Segi was pending, had
         exonerated that association from the accusation that it was a terrorist group and part of ETA. The Kingdom of Spain has not
         contested the existence of that decision but has indicated that it had not become final and that an appeal had been made to
         the Tribunal Supremo (Supreme Court) by the Ministry of Finance (public prosecutor) and by the Association of Victims of Terrorism.
      
      II –  The proceedings before the Court of First Instance and the contested orders
      18.   By applications lodged at the Registry of the Court of First Instance on 31 October 2002 (Case T‑333/02) and 13 November 2002
         (Case T‑338/02), the appellants brought two separate actions for damages against the Council.
      
      19.   The appellants claimed that the Court of First Instance should:
      –       order the Council to pay an amount of EUR 1 000 000 to each association and an amount of EUR 100 000 to each of their spokespersons
         by way of compensation for the damage allegedly suffered as a result of the inclusion of respectively Gestoras Pro Amnistía
         and Segi on the list of persons, groups and entities mentioned in Article 1 of Common Position 2001/931, as updated by Common
         Positions 2002/340 and 2002/462;
      
      –       declare that the said sums shall bear default interest at the rate of 4.5% per annum from the date of the Court’s judgment
         until payment is made;
      
      –       order the Council to pay the costs.
      20.   By documents lodged at the Registry of the Court of First Instance on 12 February 2003, the Council raised in both cases an
         objection of inadmissibility pursuant to Article 114 of the Rules of Procedure of the Court of First Instance. In addition
         to claiming, in particular, that Gestoras Pro Amnistía and Segi did not have the capacity to bring legal proceedings, that
         the natural persons among the applicants who had used the organisations’ names had no power to represent them, that the appointment
         of the lawyer on behalf of the two organisations was consequently invalid and that Mr Zelarain Errasti had not granted the
         lawyer a mandate, the Council objected that the Court of First Instance had no jurisdiction, first because Article 235 EC
         and the second paragraph of Article 288 EC were not applicable to the case in point and secondly because it was impossible
         for the Court of First Instance to rule on the legality of Common Position 2001/931.
      
      21.   In their observations with regard to that objection, the appellants asked the Court of First Instance to declare the applications
         admissible and, in the alternative, if the Court considered that it lacked jurisdiction to hear the action for damages, to
         declare in any case that the Council, by adopting the said common positions, had contravened the general principles of Community
         law stemming from the constitutional traditions common to the Member States and, in particular, from Articles 1, 6(1) and
         13 of the ECHR.
      
      22.   By orders of 5 June 2003, the President of the Second Chamber of the Court of First Instance granted leave to the Kingdom
         of Spain and the United Kingdom of Great Britain and Northern Ireland to intervene in the two cases in support of the forms
         of order sought by the Council.
      
      23.   In the contested orders, which were adopted pursuant to Article 111 of its Rules of Procedure, the Court of First Instance
         dismissed the appellants’ actions without opening the oral procedure.
      
      24.   The Court of First Instance first ruled that it patently lacked jurisdiction to hear the applications in that their purpose
         was to obtain compensation for damage allegedly caused by the inclusion of Gestoras Pro Amnistía and Segi in the list of persons,
         groups and entities mentioned in Article 1 of Common Position 2001/931, as updated by Common Positions 2002/340 and 2002/462.
      
      25.   Secondly, the Court of First Instance held that it was none the less competent, under Article 235 EC and the second paragraph
         of Article 288 EC, to rule on the applicants’ actions for damages to the extent that they were based on the claimed infringement
         of the powers of the European Community by the Council as a result of the adoption of the said common positions. After having
         examined the actions as to their substance within the aforementioned limits, the Court of First Instance dismissed them as
         patently unfounded.
      
      26.   Thirdly, the Court of First Instance also dismissed the appellants’ alternative claim on the ground of its own patent lack
         of jurisdiction, noting that ‘[i]n proceedings before the Community judicature, there is no remedy whereby the Court can adopt
         a position by means of a general declaration on a matter which exceeds the scope of the main proceedings’. (7)
      
      27.   Finally, considering that there were exceptional circumstances within the meaning of Article 87(3) of its Rules of Procedure,
         the Court of First Instance divided the legal costs among the main parties.
      
      III –  The proceedings before the Court of Justice and the forms of order sought
      28.   By applications lodged at the Registry of the Court of Justice on 17 August 2004, registered under numbers C‑354/04 P and
         C‑355/04 P and drawn up in almost identical terms, the appellants appealed against the said orders.
      
      29.   In both cases, the appellants claim that the Court should:
      –       set aside the contested order;
      –       give a final ruling on the dispute and grant the forms of order sought by the appellants before the Court of First Instance;
      –       order the Council to pay the costs.
      30.   In both cases, the Council claims that the Court should:
      –       dismiss the appeal as patently inadmissible;
      –       in the alternative, dismiss the appeal as unfounded;
      –       if necessary, refer the case back to the Court of First Instance;
      –       order the appellants to pay the costs.
      31.   In both cases, the Kingdom of Spain seeks the same forms of order as the Council.
      IV –  Analysis
      A –    The admissibility of the appeals
      32.   In their pleadings, both the Council and the Kingdom of Spain contend that the appeals are inadmissible in that they merely
         reproduce, almost literally, the pleas in law and arguments already put forward at first instance.
      
      33.   Under Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the
         Rules of Procedure, an appeal against a judgment of the Court of First Instance must indicate precisely the contested elements
         of the judgment which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support
         of the appeal. (8)
      
      34.   It is true, as the Council and the Kingdom of Spain observe, that the requirements resulting from those provisions are not
         satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating
         the judgment of the Court of First Instance, simply repeats the pleas in law and arguments already put forward before that
         Court. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the
         Court of First Instance, which the Court of Justice does not have jurisdiction to undertake. (9)
      
      35.   Nevertheless, where the abovementioned requirements are met, an appeal against a judgment of the Court of First Instance can
         be based on arguments which have already been presented at first instance in order to show that, by dismissing the pleas in
         law and arguments presented to it by the appellant, the Court of First Instance infringed Community law. (10)
      
      36.   In the present case, it appears to me that in the actions before the Court the disputed elements of the contested orders are
         identified with sufficient clarity. As is evident, in particular, from paragraph 32 of the appeals, the appellants challenge
         the finding of the Court of First Instance in paragraph 40 of the contested orders that it lacked jurisdiction to rule on
         the actions for compensation for damage allegedly caused by the inclusion of Gestoras Pro Amnistía and Segi in the list of
         persons, groups and entities to whom Common Position 2001/931 applies (‘the list of persons involved in terrorist acts’) on
         the ground that it is vitiated by an error in law.
      
      37.   Furthermore, where the appeals identify Article 6(2) EU, the Council declaration concerning the right to compensation and
         the eighth ‘recital’ of Council Decision 2003/48/JHA of 19 December 2002 on the implementation of specific measures for police
         and judicial cooperation to combat terrorism in accordance with Article 4 of Common Position 2001/931/CFSP (11) as the legal basis for the jurisdiction of the Community court (12) to hear the appellants’ actions for damages, which allegedly the Court of First Instance wrongly disregarded, they also contain
         a statement of the pleas in law to support the applications to set aside the contested orders.
      
      38.   The mere fact that the appeals contain long passages from the documents produced by the appellants before the Court of First
         Instance does not therefore render the appeals inadmissible.
      
      39.   I therefore propose that the Court dismiss the objection of inadmissibility of the appeals raised by the Council and the Kingdom
         of Spain.
      
      B –    The substance of the appeals
      1.      Preliminary considerations
      40.   It is true that the appellants’ pleas and arguments are badly presented in the appeal submissions, being arranged in three
         sections entitled ‘Jurisdiction of the Community court’ (paragraphs 33 to 44), ‘The existence of damage’ (paragraphs 45 to
         49) and ‘The exploitation by the Council of the European Union of the division of the activities of the European Union into
         three pillars’ (paragraphs 50 to 59). (13)
      
      41.   It is clear that the appellants’ remarks in paragraphs 45 to 49 aimed at proving the alleged damage and the causal link between
         that and Common Position 2001/931 do not challenge any assessment by the Court of First Instance, which did not rule on those
         aspects. Hence, these remarks do not constitute a ground of appeal and can, at most, be of relevance in the event that the
         Court sets aside the contested orders and decides to give a final ruling on the disputes under the first paragraph of Article 61
         of its Statute, as requested by the appellants.
      
      42.   By contrast, it is rather unclear what objective the appellants aim to achieve, on the procedural level, by means of the remarks
         made in paragraphs 50 to 59 of their appeals, which are rather confused and, it is true, slavishly reproduce an entire section
         of the observations presented to the Court of First Instance on the objection of inadmissibility raised by the Council.
      
      43.   In those remarks, the appellants complain of misuse of procedure by the Council. They appear, in the final analysis, to reproach
         the Council for having fraudulently deprived them of judicial protection by not using a Community instrument to adopt the
         list of persons involved in terrorist acts, including persons to whom only Article 4 of Common Position 2001/931 applies.
         According to the appellants, the use of a Community instrument would have permitted such persons, including the appellants
         themselves, to bring an action before the Community court to challenge their inclusion on the list and obtain compensation.
         In this regard, the appellants claim unlawful discrimination against themselves, given that persons affected by the measures
         laid down in Articles 2 and 3 of the aforementioned common position, (14) who are included in the same list, do have judicial protection in that those measures are adopted by means of a Community
         action open to review by the Community court. However, in their defences the appellants manage to contradict that argument,
         maintaining that Articles 2 and 3 of Common Position 2001/931 were also applicable to themselves.
      
      44.   Considerations of this kind raise arguments which the Court of First Instance, on the basis of the claimed assumption that it had jurisdiction under Articles 235 EC and the second paragraph of Article 288 EC, considered and dismissed, within the scope of the limited examination of the substance of the actions for compensation at
         first instance, concluding with a finding that the claims were patently unfounded on the ground that there was no unlawful
         conduct on the part of the Council. (15) However, the appeals and defences contain no passage that makes it possible to hold that the appellants have challenged the
         parts of the orders of the Court of First Instance relating to that finding. As I have already noted in point 36 above, the
         appeals appear to turn solely on the declaration of lack of jurisdiction in paragraph 40 of the contested orders. Moreover,
         the conclusion that the appellants appear to draw from these considerations is that ‘the present dispute therefore comes within
         the jurisdiction of the Community courts pursuant to Article 235 EC and the second paragraph of Article 288 EC’. (16) This is precisely what the Court of First Instance stated in paragraph 42 of the contested orders.
      
      45.   I therefore consider that the considerations in paragraphs 50 to 59 of the appeals, complemented by those contained in paragraphs 12
         to 16 of the statements of defence, should be considered to be inadmissible, first because they fail to meet the minimum requirements
         of clarity and precision and secondly because they do not identify precisely the contested elements of the orders against
         which the appeals have been brought.
      
      46.   In any case, even supposing that such considerations can legitimately be interpreted as being designed to substantiate a further
         ground of appeal against the declaration of lack of jurisdiction in paragraph 40 of the contested orders, a ground consisting
         in the presumed impossibility for the Council to rely on the lack of jurisdiction of the Community court with respect to the
         appellants, it would nevertheless appear to me to be unfounded.
      
      47.   It is quite obvious that, contrary to what is maintained in the statements of defence, the appellants were affected by only
         Articles 1 and 4 of Common Position 2001/931, and not also by Articles 2 and 3. The contrary argument adduced in the statements
         of defence, according to which the footnote to the Annex to Common Position 2001/931 referred only to the natural persons
         on the list and not also to the groups and entities named there, is very strange, given that in the list there was also an
         asterisk against the names of Gestoras Pro Amnistía and Segi and that the term ‘persons’ is sufficiently general to cover
         groups and entities as well.
      
      48.   As the Court of First Instance correctly found in the contested orders, (17) the mutual assistance between the Member States to prevent and combat terrorist acts, provided for in Article 4 of the aforementioned
         common position, falls within the scope of police and judicial cooperation in criminal matters under Title VI of the EU Treaty.
         The appellants have not in any way shown, either at first instance or before the Court of Justice, that such mutual assistance
         should have been ordered or at least implemented by means of Community instruments. (18) Moreover, they cannot seriously reproach the Council for not having made them subject also to the sanctions envisaged in
         Articles 2 and 3 of the common position. Hence, it has not been demonstrated in any way that the Council committed an abuse
         of procedure and infringed the competences of the Community in such a way that it might be argued, if only in the abstract,
         that the lack of jurisdiction of the Community courts cannot be used as an argument against the appellants.
      
      49.   I therefore consider that the Court should focus its attention on the ground of appeal set out in paragraphs 33 to 44 of the
         appeals – relating to the infringement by the Court of First Instance of Article 6(2) EU, of the Council declaration concerning
         the right to compensation and of the eighth ‘recital’ of Decision 2003/48 – and on the declaration of lack of jurisdiction
         to which it refers. Consequently, in the remainder of this Opinion I shall refrain from further consideration of the parts
         of the orders of the Court of First Instance that are not contested, which are summarised in points 25 and 26 above.
      
      2.      The grounds adopted by the Court of First Instance in support of the declaration of its own lack of jurisdiction
      50.   The reasoning followed by the Court of First Instance to conclude that it had no jurisdiction to hear the appellants’ actions
         for damages (19) consists essentially of the following passages:
      
      (1) The acts that allegedly caused the damage of which the appellants complain – in other words Common Position 2001/931 and
         the subsequent common positions updating it which kept the names of Gestoras Pro Amnistía and Segi on the list of persons
         involved in terrorist acts – are, as far as the part relating to the appellants is concerned, based on Article 34 EU and come
         within the scope of Title VI of the EU Treaty relating to police and judicial cooperation in criminal matters; (20)
      
      (2) No judicial remedy for compensation is available in the context of Title VI of that Treaty and no jurisdiction of the
         Community court to hear such an action can be deduced from Article 46(d) EU; (21)
      
      (3) The appellants ‘probably’ have no effective judicial remedy with regard to the inclusion of Gestoras Pro Amnistía and
         Segi on the list in question; (22)
      
      (4) The last circumstance cannot, however, in itself give rise to Community jurisdiction to hear the appellants’ claims for
         compensation, given that the legal system of the European Union (‘the Union’) is based on the principle of conferred powers,
         as follows from Article 5 EU; (23)
      
      (5) The Council declaration concerning the right to compensation is also incapable of forming a basis for the jurisdiction
         of the Community court in the present case. (24)
      
      3.       Analysis
      51.   According to the appellants, the Court of First Instance erred in law by declaring its lack of jurisdiction to hear actions
         for compensation for damage allegedly caused to them by the inclusion of Gestoras Pro Amnistía and Segi on the list of persons
         involved in terrorist acts. In their opinion, a legal basis for the jurisdiction of the Court of First Instance is to be found
         in Article 6(2) EU, read in conjunction with the Council declaration concerning the right to compensation and the eighth ‘recital’
         of Decision 2003/48.
      
      52.   In that ground of appeal, the appellants do not appear to dispute the assessments of the Court of First Instance set out in
         (1), (2) and (3) of point 50 above. Their complaints appear to be directed essentially against the assessments of the Court
         of First Instance recalled in (4) and (5) of that point.
      
      53.   However, since the point at issue is the jurisdiction of the Community court, which is a matter of public policy to be examined
         in the light of all the relevant facts and not only those put forward by the parties, I consider it necessary to review not
         only the specific complaints brought by the appellants in their appeals but the entire reasoning that led the Court of First
         Instance to make the contested declaration of lack of jurisdiction, and hence also its assessments recalled in (1), (2) and
         (3) of point 50 above, which are not disputed by the appellants.
      
      (a)     The legal basis of the measures taken with regard to the appellants
      54.   As can be seen from the fifth ‘recital’ in its preamble, Common Position 2001/931 is a response to the perceived need to ‘take
         additional measures in order to implement [Security Council] … Resolution 1373 (2001)’, which required all States to take
         a series of actions to combat terrorism, including, in particular, to afford one another the greatest measure of assistance
         in connection with criminal investigations and other proceedings relating to the financing or support of terrorist acts, including
         assistance in obtaining evidence in their possession necessary for the proceedings.
      
      55.   In that sense, Common Position 2001/931 can be considered to be an act which, as far as its objectives are concerned, comes within the framework of the common foreign and security policy under Title V of the EU Treaty. However, some of the
         measures for which that act provides – those affecting the appellants Gestoras Pro Amnistía and Segi, which are laid down
         in Article 4 (that is to say, mutual assistance between Member States to prevent and combat terrorist acts and, in particular,
         in connection with investigations and criminal proceedings against the persons named on the annexed list) – are operational instruments and as such come within the scope of police and judicial cooperation in criminal matters under Title VI of the EU Treaty.
      
      56.   The inclusion and maintenance of Gestoras Pro Amnistía and Segi on the list of persons involved in terrorist acts was a means
         of applying only Article 4 of Common Position 2001/931 to those organisations. I therefore share the assessment of the Court
         of First Instance, referred to in (1) of point 50 above, that the legal basis of the acts which were allegedly detrimental
         to the legal position of the appellants is Article 34 EU, inserted into Title VI of the EU Treaty.
      
      57.   I also wish to emphasise, however, that, although in accordance with the second sentence of Article 1(4) of Common Position
         2001/931 persons, groups and entities identified by the Security Council as being related to terrorism and against whom it
         has ordered sanctions may be included in the list in question, it is not alleged in the present cases that Gestoras Pro Amnistía
         and Segi were placed on the list as a consequence of their being identified by the Security Council. It must therefore be
         held that their inclusion was decided completely autonomously by the Council on the basis of information from one or more
         Member States in accordance with the criteria specified in the first sentence of Article 1(4) of Common Position 2001/931.
         More generally, I note that Article 1 of that act does not constitute the transposition of similar provisions in Resolution
         1373 (2001), but is the result of an autonomous decision by the Council.
      
      (b)     The absence of provision in the EU Treaty for actions for damages and for jurisdiction of the Court of Justice over police
         and judicial cooperation in criminal matters
      
      58.   I also share the assessments of the Court of First Instance referred to in (2) of point 50 above, but subject to a number
         of appropriate clarifications.
      
      59.   I observe that Article 46 EU lists exhaustively (as shown by the use of the term ‘only’) the powers of the Court of Justice
         in the fields of activity of the Union governed by the EU Treaty. As regards the provisions of Title VI of the Treaty, Article 46(b)
         provides that ‘[t]he provisions of the [EC] Treaty, the [ECSC] Treaty and the [Euratom] Treaty concerning the powers of the
         Court of Justice of the European Communities and the exercise of those powers shall apply’ ‘under the conditions provided
         for by Article 35 [EU]’.
      
      60.   Article 35 EU provides that:
      ‘1. The Court of Justice of the European Communities shall have jurisdiction, subject to the conditions laid down in this
         Article, to give preliminary rulings on the validity and interpretation of framework decisions and decisions, on the interpretation
         of conventions established under this Title and on the validity and interpretation of the measures implementing them.
      
      2. By a declaration made at the time of signature of the Treaty of Amsterdam or at any time thereafter, any Member State shall
         be able to accept the jurisdiction of the Court of Justice to give preliminary rulings as specified in paragraph 1.
      
      3. A Member State making a declaration pursuant to paragraph 2 shall specify that either:
      (a) any court or tribunal of that State against whose decisions there is no judicial remedy under national law may request
         the Court of Justice to give a preliminary ruling on a question raised in a case pending before it and concerning the validity
         or interpretation of an act referred to in paragraph 1 if that court or tribunal considers that a decision on the question
         is necessary to enable it to give judgment, or
      
      (b) any court or tribunal of that State may request the Court of Justice to give a preliminary ruling on a question raised
         in a case pending before it and concerning the validity or interpretation of an act referred to in paragraph 1 if that court
         or tribunal considers that a decision on the question is necessary to enable it to give judgment.
      
      4. Any Member State, whether or not it has made a declaration pursuant to paragraph 2, shall be entitled to submit statements
         of case or written observations to the Court in cases which arise under paragraph 1.
      
      5. The Court of Justice shall have no jurisdiction to review the validity or proportionality of operations carried out by
         the police or other law enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member
         States with regard to the maintenance of law and order and the safeguarding of internal security.
      
      6. The Court of Justice shall have jurisdiction to review the legality of framework decisions and decisions in actions brought
         by a Member State or the Commission on grounds of lack of competence, infringement of an essential procedural requirement,
         infringement of this Treaty or of any rule of law relating to its application, or misuse of powers. The proceedings provided
         for in this paragraph shall be instituted within two months of the publication of the measure.
      
      7. The Court of Justice shall have jurisdiction to rule on any dispute between Member States regarding the interpretation
         or the application of acts adopted under Article 34(2) whenever such dispute cannot be settled by the Council within six months
         of its being referred to the Council by one of its members. The Court shall also have jurisdiction to rule on any dispute
         between Member States and the Commission regarding the interpretation or the application of conventions established under
         Article 34(2)(d).’ 
      
      61.   Hence, Article 35 EU does not envisage an action to obtain compensation for damages caused by the activities of the Union
         in the field of police and judicial cooperation in criminal matters.
      
      62.   I nevertheless wish to point out immediately that, in my opinion, although Article 46(b) EU taken in conjunction with Article 35 EU
         excludes the jurisdiction of the Community court for actions for compensation for damage caused by the Union’s activities in the field of police and judicial cooperation
         in criminal matters, it does not for that reason as a general rule preclude the bringing of such judicial actions. The EU
         Treaty does not mention such actions, but nor does it preclude them. I shall return to this point later.
      
      63.   I also share the assessment of the Court of First Instance that Article 46(d) EU does not give the Community court further
         competence. (25)
      
      64.   Indeed, in providing that ‘[t]he provisions of the [EC] Treaty, the [ECSC] Treaty and the [Euratom] Treaty concerning the
         powers of the Court of Justice of the European Communities and the exercise of those powers shall apply’ to ‘[Article 6(2) EU]
         with regard to action of the institutions, in so far as the Court has jurisdiction under the Treaties establishing the European
         Communities and under this Treaty’, Article 46(d) EU, which was inserted into the EU Treaty by means of the Treaty of Amsterdam,
         simply makes it clear that the Community court may verify that the acts of the institutions comply with the fundamental rights
         recognised by the Union to be ‘general principles of Community law’ in the contexts in which that court has jurisdiction to
         intervene on other grounds. Hence, that provision does not establish a specific jurisdiction of the Community court or a specific remedy for the infringement
         of fundamental rights comparable to the Verfassungsbeschwerde under German law or the recurso de amparo under Spanish law. (26)
      
      65.   I also observe, from a different angle, that under Article 46(f) EU the Community court has jurisdiction to interpret and
         apply Article 46 EU itself on the powers of the Court of Justice. Insofar as it thus has jurisdiction under the EU Treaty,
         and for the purposes of the exercise of that jurisdiction, the Community court is also authorised to interpret and apply Article 6(2) EU
         as regards the action of the institutions, in conformity with Article 46(d) EU.
      
      66.   I further consider that, in exercising those powers based on Article 46(f) EU, the Community court is not prevented from also
         taking into account other provisions of the EU Treaty, even though they are not mentioned in Article 46 EU. I note in this
         regard that, under Article 31(1) of the Vienna Convention on the Law of Treaties signed in Vienna on 23 May 1969 (‘the Vienna
         Convention’), when interpreting a treaty its terms must be considered ‘in their context’, which comprises, inter alia, the
         ‘text’ of the treaty, ‘including its preamble and annexes’. Hence, in the context of these appeals and for the purpose of
         examining the jurisdiction of the Community court for the actions for damages brought by the appellants, there is nothing
         to prevent the Court of Justice from taking into account, in particular, the preamble to the EU Treaty and the ‘Common provisions’
         in Title I thereof, such as Article 5 EU, which the Court of First Instance cited in the contested orders, or Article 6(1) EU.
      
      (c)     The inappropriateness of the Council declaration concerning the right to compensation as a basis for the jurisdiction of
         the Community court to hear the appellants’ claims for damages
      
      67.   Moreover, the assessment of the Court of First Instance recalled in (5) of point 50 above regarding the inappropriateness
         of the Council declaration concerning the right to compensation as a basis for the jurisdiction of the Community court to
         hear the appellants’ claims for damages seems unquestionably to be correct. (27)
      
      68.   First of all, that declaration does not in any way suggest that compensation for damages due to an error as to the persons,
         groups or entities included in the list of persons involved in terrorist acts may be claimed in an action before the Community court.
      
      69.   Furthermore, such an action before the Community court is precluded by the provisions of the EU Treaty, which can obviously
         not be waived or amended by a declaration annexed to the minutes recording approval of an act of secondary legislation such
         as a common position.
      
      70.   None the less, I shall indicate below the sense in which the declaration relied upon by the appellants is not, in my opinion,
         entirely without significance.
      
      (d)     The supposed lack of effective judicial protection of the appellants’ rights
      71.   However, I consider that the assessment by the Court of First Instance that the appellants had no judicial remedy against
         the inclusion of Gestoras Pro Amnistía and Segi on the list of persons involved in terrorist acts, which moreover is expressed
         in curiously perplexed terms, (28) to be unjustified, but in some ways not surprising.
      
      72.   Before setting out the reasons that lead me to consider that assessment unjustified, I wish to demonstrate the seriousness
         of its consequences.
      
      (i)     The consequences of a finding of a lack of judicial protection of the appellants’ rights
      73.   It must be remembered that, pursuant to Article 6(1) EU, as amended by the Treaty of Amsterdam, ‘[t]he Union is founded on
         the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which
         are common to the Member States’.
      
      74.   Article 6(2) EU, which enshrines in a rule of primary law a settled principle of the case-law of the Court on the application
         of the EC Treaty and extends it to all spheres of activity of the Union, states that ‘[t]he Union shall respect fundamental
         rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome
         on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles
         of Community law’.
      
      75.   The primary importance which the versions of the EU and EC Treaties resulting from the Treaty of Amsterdam give to the principle
         of the rule of law and the protection of fundamental rights (29) and which is widely and variously celebrated in the literature is also evident in other provisions of those Treaties: Article 7 EU,
         which provides for a procedure whereby the Council may determine the existence of a serious and persistent breach by a Member
         State of one or more of the principles mentioned in Article 6(1) EU, with the possibility of suspending certain of the rights
         deriving from the application of the EU Treaty to the Member State in question; Article 49 EU, which makes the entry of new
         States to the Union conditional on their respecting the principles set out in Article 6(1) EU; and Article 11(1) EU, which
         makes the ‘develop[ment] and consolidat[ion of] democracy and the rule of law, and respect for human rights and fundamental
         freedoms’ one of the objectives of the common foreign and security policy, an objective to which, under Articles 177(2) EC
         and 181a(1) EC, the Community policies in the fields of development cooperation and economic, financial and technical cooperation
         with third countries are required to contribute.
      
      76.   Mention should also be made of the Charter of Fundamental Rights of the European Union, which was solemnly proclaimed by the
         European Parliament, the Council and the Commission in Nice on 7 December 2000 after having been approved by the Heads of
         State or Government of the Member States (‘the Charter’). While the Charter is not a legally binding instrument, its principal
         aim, as is apparent from its preamble, is to reaffirm ‘rights as they result, in particular, from the constitutional traditions
         and international obligations common to the Member States, the [EU] Treaty, the Community Treaties, the [ECHR], the Social
         Charters adopted by the Community and by the Council of Europe and the case-law of the Court … and of the European Court of
         Human Rights’. (30)
      
      77.   As regards the principle of the rule of law, I would point out that the Court has already drawn from that the corollary, with
         reference to the European Community and in describing it as a ‘Community based on the rule of law’, that the Member States
         and the institutions are subject to judicial review of the compatibility of their acts with the EC Treaty and with the general
         principles of law, which include fundamental rights. (31) Similarly, it must be held that, if the Union is based on the principle of the rule of law (Article 6(1) EU), its institutions
         and the Member States of which it is composed cannot be exempted from judicial review of the compatibility of their acts with
         the Treaty, in particular Article 6(2) EU, even where they act on the basis of Titles V and VI of the EU Treaty.
      
      78.   As regards the protection of fundamental rights, which form an integral part of the general principles of law, in ensuring
         observance thereof the Court draws inspiration from the constitutional traditions common to the Member States and from the
         guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated
         or to which they are signatories, in particular the ECHR, which the Court deems to have ‘special significance’ in that respect.
         As the Court has further stated, it follows that the Community cannot accept measures which are incompatible with observance
         of the human rights thus recognised and guaranteed, which therefore constitutes a precondition for the legality of Community
         acts. (32) Given the wording of Article 6(2) EU and its place among the ‘Common provisions’ in Title I of the EU Treaty, similar considerations
         must obviously be made with reference to measures expressing the action of the Union in the fields of the common foreign and
         security policy (the ‘second pillar’) and police and judicial cooperation in criminal matters (the ‘third pillar’).
      
      79.   Respect for human rights and fundamental freedoms and the principle of the rule of law are therefore an ‘internal’ dimension,
         being a foundation of the Union and a criterion for assessing the legality of the action of its institutions and of the Member
         States in the matters for which the Union has jurisdiction, and an ‘external’ dimension, as a value to be ‘exported’ beyond
         the borders of the Union by means of persuasion, incentives and negotiation.
      
      80.   The Court has already shown that entitlement to the effective judicial protection of rights invoked in this case by the appellants
         forms an integral part of the general principles of law deriving from the constitutional traditions common to the Member States
         and that it is also enshrined in Article 6(1) EU and Article 13 of the ECHR. (33) I would add that the right in question is also recognised by Articles 8 and 10 of the Universal Declaration of Human Rights
         adopted by the General Assembly of the United Nations by means of Resolution 217A (III) on 10 December 1948 and by Articles 2(3)
         and 14(1) of the International Covenant on Civil and Political Rights, which was adopted on 16 December 1966 and came into
         force on 23 March 1976. (34) The Charter provides for it in Article 47.
      
      81.   It should be pointed out that the reliance in this case on the fundamental right to effective judicial protection assumes
         particular importance, in that such protection in turn affects fundamental rights recognised and protected by Union law. In
         their actions before the Court of First Instance, the appellants maintained, with arguments that are not indefensible, that
         the inclusion on the list of persons involved in terrorist acts, of which they complain, harmed the genuine fundamental rights
         of the organisations Gestoras Pro Amnistía and Segi and/or of their spokespersons, such as, in particular, the presumption
         of innocence (Article 6(2) of the ECHR and Article 48(1) of the Charter), freedom of expression (Article 10 of the ECHR and
         Article 11 of the Charter), freedom of association (Article 11 of the ECHR and Article 12 of the Charter) and the right to
         respect for private life (Article 8 of the ECHR and Article 7 of the Charter). (35)
      
      82.   Hence, to acknowledge, as the Court of First Instance felt it had to do in the contested orders, that the appellants are denied
         an effective judicial remedy against their inclusion means recognising that, in the sphere of police and judicial cooperation
         in criminal matters, situations may arise in which, where judicial remedy is absent, the action of the Union may in fact infringe
         with impunity all the other rights and fundamental freedoms which the Union professes to respect.
      
      83.   Although it is true that, according to the case-law of the European Court of Human Rights, the so‑called ‘right to a court’
         is not absolute, but may be subject to limitations, it must be remembered that according to that Court such limitations are
         permissible only where they pursue a legitimate aim and are proportionate to that aim and do not restrict the individual’s
         access to a court in such a way that the very essence of the right is impaired. (36) I do not consider that those requirements are met where there is a total absence of judicial protection of the appellants’
         rights, as found by the Court of First Instance, which would be the result not of specific regulations designed to limit access
         to a court in pursuit of a particular aim but of the failure to establish adequate remedies in an entire sphere of activity
         of the Union.
      
      84.   Moreover, I wish to point out that the European Court of Human Rights has emphasised that Article 1 of the ECHR, under which
         the Contracting States ‘secure to everyone within their jurisdiction the rights and freedoms defined in Section I’ of the
         ECHR, makes no distinction as to the type of rule or measure concerned and does not exclude any part of those States’ ‘jurisdiction’
         from the application of the ECHR. (37)
      
      85.   If in a case such as that of the appellants there is genuinely no effective judicial remedy, this would not only be an extremely
         serious and flagrant inconsistency of the system within the Union, but also a situation which, from an external point of view,
         exposes the Member States of the Union to censure by the European Court of Human Rights and not only impairs the image and
         identity of the Union on the international plane (38) but also weakens its negotiating position vis-à-vis third countries, creating a theoretical risk that they will activate
         clauses on the respect of human rights (so-called ‘conditionality clauses’), which the Union itself ever more frequently requires
         to be included in the international agreements it signs. (39)
      
      86.   In particular, from the point of view of observance of the obligations undertaken by the Member States when they signed the
         ECHR, it is entirely improbable that the European Court of Human Rights would extend to the third pillar of the Union the
         presumption of equivalence in the protection of the fundamental rights that it has established between the ECHR and Community
         law, or the ‘first pillar’ of the Union, and which leads that Court to carry out only a ‘marginal’ review of the compatibility
         of acts adopted by the Community institutions with the ECHR. (40) On the other hand, it is highly likely that, in the course of a full examination of the compatibility of acts adopted by
         the institutions under Title VI of the EU Treaty with the ECHR, the European Court of Human Rights will in future rule that
         the Member States of the Union have infringed the provisions of that Convention, or at least Articles 6(1) and/or 13.
      
      87.   I wish to explore two further points regarding relations with the ECHR.
      88.   First, I consider that the decision taken by the European Court of Human Rights under Article 34 of the ECHR regarding the
         actions brought before that Court by the appellants (see point 14 above) neither gives reassurance from the point of view
         I have just set out nor, and even less, excludes the possibility of a breach of the appellants’ right to effective judicial
         remedy in this case from the point of view of Union law. It is a decision not on the merits of the case but on admissibility, based on a denial that, in the light of the specific nature of the actual case, the appellants are ‘victims’ within the meaning of Article 34 of the ECHR, which is a purely procedural provision of the
         ECHR and hence cannot, in my view, be relevant to the protection of fundamental rights within the Union. (41)
      
      89.   Secondly, there would be little point in noting that, since it would in any case be possible to bring an action before the
         European Court of Human Rights for breach of fundamental rights against acts adopted by the institutions in the field of police
         and judicial cooperation in criminal matters, there is not a gap in the protection of such rights in that field. The review
         carried out by that Court is a subsidiary review outside the Union system and hence would not make good any lack of adequate guarantees within the system to protect fundamental rights or resolve the serious inconsistency that would ensue for the system itself, as
         I have shown above.
      
      90.   I would add, however, that were the Court to endorse the recognition of such a gap in the protection of fundamental rights
         in the field of police and judicial cooperation in criminal matters, the national courts of various Member States would feel
         entitled, if actions were brought before them, to verify whether the acts adopted by the Council on the basis of Article 34 EU (42) were compatible with the fundamental rights guaranteed by their respective national legal systems, but not necessarily in an identical manner. This would impair the equality of citizens of the Union before the law. The theory of so-called ‘counter-checks’ under domestic
         law, which have become established in the constitutional case-law of several Member States as a barrier to the institutions’
         exercise of the parts of sovereignty transferred to the Community, (43) would find scope for much more concrete application in the third pillar of the Union than it has had in relation to the action
         of the Community.
      
      (ii)  The appellants are not deprived of effective judicial protection of their rights
      91.   Having emphasised the serious consequences of a finding of a lack of judicial protection of (fundamental) rights invoked by
         the appellants, such as that made in paragraph 38 of the contested orders, it appears even more obvious that, if possible,
         the EU Treaty should be interpreted in a way that ensures such protection within the system established by that Treaty. (44)
      
      –        Inadequacy, for the purposes of providing judicial protection of the appellants’ rights, of judicial remedies against national
         measures implementing Article 4 of Common Position 2001/931 and of the reference for a preliminary ruling on validity under
         Article 35(1) EU
      
      92.   It must be borne in mind, as the Court of First Instance has shown, (45) that in the present case the appellants are claiming compensation for an infringement of their (fundamental) rights that
         is due not so much to their being subject to the measures laid down in Article 4 of Common Position 2001/931 as directly to
         the inclusion of Gestoras Pro Amnistía and Segi on the list of persons involved in terrorist acts. The harm of which they
         complain therefore arises irrespective of whether national measures implementing the abovementioned article are actually adopted.
      
      93.   Hence, the Court of First Instance correctly stated that the protection of such rights cannot reside in the possibility of
         invoking the (non-contractual) liability of individual Member States for national measures enacted pursuant to Article 4 of
         Common Position 2001/931. (46)
      
      94.   The Court of First Instance then held that the Court of Justice’s power to give preliminary rulings on validity under Article 35(1) EU
         was equally inappropriate as a means of ensuring such protection. I share that assessment, even beyond the reason given in
         the contested orders, namely that that power does not relate to common positions but only to framework decisions and decisions, (47) and beyond the possibility of reclassifying Common Position 2001/931 as a decision on the basis of the content of the act.
      
      95.   I note, rather, that a reference for a preliminary ruling, including one regarding validity, is not a remedy in the true sense
         but a means of cooperation between national courts and the Community court in the context of an action that can be brought
         before national courts. Typically, a reference for a preliminary ruling on validity is appended to an action for annulment
         brought at national level against national measures implementing the act whose validity is being challenged. In my view, it
         is rather difficult in a case such as the present one to invoke the Court’s power to give a preliminary ruling on validity
         under Article 35(1) EU in the context of an action challenging possible measures implementing Article 4 of Common Position
         2001/931. That article does not grant Member States and their authorities new powers but merely encourages or, at most, requires
         Member States and their authorities to use ‘existing powers in accordance with acts of the European Union and other international
         agreements, arrangements and conventions which are binding upon Member States’. Those powers could and can be exercised in
         respect of the persons listed in the annex to Common Position 2001/931 even in the absence of that act. (48) Hence, I do not see how the question of the legality of the inclusion of a particular person on the abovementioned list can
         be relevant for the purposes of an examination, by a national court, of the legality of national measures such as those contemplated
         in the abovementioned Article 4.
      
      96.   In any case, exercise of the power to give a preliminary ruling on validity could, at most, lead to a declaration that Common
         Position 2001/931 or the contested listings are invalid, but not to compensation for the damage that may have ensued. The
         possibility of obtaining compensation for damage sustained as a result of infringement of a right, where a simple finding
         of infringement or a declaration of the invalidity of the detrimental act is not sufficient adequately to restore the infringed
         right, is, in my opinion, inherent in judicial protection of the right if such protection is intended to be effective. (49)
      
      97.   Compensation for damage allegedly sustained is precisely the subject-matter of the action brought by the appellants before
         the Court of First Instance.
      
      –        The judicial protection of the appellants’ rights rests with the national courts
      98.   The fact that the EU Treaty makes no provision for an action for damages possibly caused by acts adopted by the Council on
         the basis of Article 34 EU and prevents the Community court from hearing such actions, which are not mentioned in Article 35 EU,
         does not however, in my opinion, mean that the appellants in the present case are without effective judicial protection of
         the (fundamental) rights that they invoke.
      
      99.   I consider instead that a correct interpretation of the EU Treaty testifies to the fact that such protection exists, but is
         entrusted, in the present state of Union law, not to the Community court but to the national courts.
      
      100. It should be noted, however, that under the arrangements provided for in the Treaty establishing a Constitution for Europe,
         which has not yet been ratified by all Member States, in a case such as the present one an individual would be able to bring
         before the Community court an action against the Union either for annulment (Article III‑365, which is also applicable to
         acts of the Union adopted in the field of police and judicial cooperation in criminal matters) (50) or for damages (Article III‑370 and the second paragraph of Article III‑431).
      
      101. As I have stated, the Union is based, inter alia, on the principle of the rule of law and respect for fundamental rights.
         The rule of law is based not so much on rules and the proclamation of rights as on mechanisms that make it possible to ensure
         respect for rules and rights (ubi ius ibi remedium). The ‘right to challenge a measure before the courts is inherent in the rule of law’, (51) it is the ‘corollary’ to it, and both ‘a victory over and an instrument’ of it. (52) In Article 6(2) EU, Union law now expressly grants the individual a range of fundamental rights, which, as is clear from
         Article 46(d) EU, can be relied on before a court as criteria for the legality of acts of the Union.
      
      102. The point of departure must therefore be that, under Article 6(1) and (2) EU, the Union recognises the judicial review of
         the legality of the action of its institutions and guarantees the judicial protection of rights, especially those that can
         be classified as fundamental.
      
      103. No provision of the EU Treaty to the contrary can be invoked to claim, in particular, that the authors of that Treaty intended
         to exclude such review and protection from the field of police and judicial cooperation in criminal matters, where moreover
         the action of the Union may impair individuals’ fundamental rights and freedoms more easily than in other fields within the
         jurisdiction of the Union and where the involvement of the European Parliament is still very limited. (53)
      
      104. Article 46 EU concerns only the jurisdiction of the Community court and defines its scope. Furthermore, no provision of the EU Treaty gives that court exclusive power to assess the legality
         of the acts by which the Union performs its activities. It follows from the principle of conferred powers – which finds expression,
         inter alia, in the EU Treaty (Article 5) – that the exercise of Member States’ sovereign powers, including judicial power,
         is reserved to the Member States themselves, and hence to their authorities, where such powers have not been conferred on
         institutions of the Union.
      
      105. The power of national courts to review the legality of acts adopted by the Council pursuant to Article 34 EU, which is obviously
         limited by respect for the powers conferred on the Court of Justice, is rooted not only in the principles of the rule of law
         and respect for fundamental rights on which the Union is based (Article 6(1) and (2) EU), including the right to effective
         judicial protection, but also in the principle of loyal cooperation.
      
      106. The Court has already confirmed that the principle of loyal cooperation is also binding in the area of police and judicial
         cooperation in criminal matters, meaning that Member States should take all appropriate measures, whether general or particular,
         to ensure fulfilment of their obligations under Union law. (54)
      
      107. It must be deduced from this, in particular, that in the context of the third pillar of the Union as well it is for the Member
         States to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection (55) and for their courts to interpret and apply the national procedural rules governing the bringing of actions in such a way
         as to ensure such protection.
      
      108. Important evidence confirming, albeit indirectly, that acts adopted by the Council under Article 34 EU are subject to judicial
         review by national courts on the initiative of individuals can also be deduced from the rules on the judicial powers conferred
         on the Court by Article 35 EU.
      
      109. By providing, in paragraph 1, that the Court has jurisdiction to give preliminary rulings, in particular, on the validity
         of framework decisions and decisions, Article 35 EU first of all confirms that such acts are not exempt from judicial review
         that can be initiated by individuals.
      
      110. Moreover, Article 35(1) EU shows that to some extent national courts also operate with respect to the third pillar of the
         Union, as with respect to the first pillar, as ‘common law courts’ of the Union. By asking the Court to clarify the interpretation
         to be given to framework decisions and decisions, they can better ensure, for example, a conforming interpretation of national
         law (56) in relation to such acts. By referring questions on the validity of such acts to the Court, national courts can better ensure
         that the fundamental rights recognised by Union law, which individuals can invoke directly before a court, are respected by
         the action of the Union in the field of police and judicial cooperation in criminal matters.
      
      111. In the framework of the third pillar of the Union, as in that of the Communities, the Court of Justice operates in a context
         in which the institutions of the Union coexist not only with the Member States but also with the individual authorities of
         those States. Among these authorities, the courts also contribute to shaping Union law. Even within the framework of the third
         pillar, the judicial system of the Union therefore does not consist solely of actions that can be brought before the Court
         of Justice but also of those that can be brought before national courts.
      
      112. In Article 35 EU, the authors of the Treaty of Amsterdam significantly extended the jurisdiction of the Court of Justice with
         regard to police and judicial cooperation in criminal matters by comparison with the situation resulting from the Treaty of
         Maastricht. However, the provisions of that article on the Court’s power to give preliminary rulings are designed to limit
         that power significantly. Moreover, they are modelled essentially on those laid down as between the Member States, after difficult
         negotiations, for the Europol Convention (57) and implemented in the Protocol on the interpretation of that Convention by the Court by way of preliminary rulings, (58) which are a compromise solution in the face of the hostility of some Member States towards an extension of the Community
         court’s involvement in this area.
      
      113. Hence, the Court’s power to give preliminary rulings under Article 35(1) EU is optional for Member States. Under Article 35(2) EU,
         they can accept it or not (‘opt-in’ system). On the basis of a notice published by the Council in the Official Journal of the European Union on 14 December 2005, (59) at that date only 14 Member States had declared that they accepted such jurisdiction. Naturally, the lack of acceptance by
         the other Member States does not prevent the courts of accepting States from referring questions to the Court for preliminary
         rulings and the Court from ruling on such questions.
      
      114. If it were held that persons affected by measures enacting framework decisions or decisions under Article 34 EU, adopted by
         States that have not accepted the jurisdiction of the Court to give preliminary rulings, were not able to challenge the validity
         of such Council acts before the courts of those States, we would be in a situation of intolerable inequality between persons
         affected by one and the same act under Article 34 EU, who would or would not enjoy judicial protection against that act, depending
         on the options chosen by the individual State pursuant to Article 35(2) EU.
      
      115. A reading of Article 35(1) and (2) EU that respected not only the right to effective judicial protection but also the principles
         of equality before the law (see Article 20 of the Charter) and non-discrimination on grounds of nationality (see Article 21(2)
         of the Charter) without thereby betraying the literal meaning of the provisions in question requires it to be recognised that
         even in the States that have not accepted the jurisdiction of the Court to give preliminary rulings individuals can mount
         a legal challenge to the validity of the framework decisions and decisions underlying the national measures which they are
         asking the national court to annul. In this case, it must be possible for a decision as to the validity or invalidity of the
         Council act to be taken by the national court itself in the absence of the possibility of a reference for a preliminary ruling.
      
      116. But there is more. It follows from Article 35(3) EU that the power of the Court to give preliminary rulings, including rulings
         on validity, is, from the point of view of Union law, purely optional for the courts of the States that have accepted it. Whether Member States specify, by making the declaration
         referred to in paragraph 2, that they wish only their courts of last instance to be able to make a reference to the Court
         for a preliminary ruling (Article 35(3)(a)) or wish to grant that possibility to all of their courts (Article 35(3)(b)), under
         Article 35(3) EU it remains an option and not an obligation (‘may request’) for a court, of any level, where it considers
         it necessary to enable it to give judgment, to seek a decision on the validity or interpretation of a framework decision or
         decision. The optional nature of the reference even for courts of last instance can be explained partly by the need for speed
         in the resolution of the disputes that may arise in the matters in question.
      
      117. It is true that on the basis of Declaration 10 on Article 35 EU annexed to the Final Act of the Intergovernmental Conference
         of Amsterdam Member States may, when making a declaration pursuant to Article 35(2) EU, reserve the right to make provisions
         in their national law requiring their courts of last instance to refer questions on validity or interpretation to the Court
         of Justice. Nevertheless, it remains a fact that such an obligation stems not from Union law but from the domestic law of
         the Member State.
      
      118. Hence, if, from the point of view of Union law, reference for a preliminary ruling on validity is optional even for a court of last instance, and only when it deems it
         necessary to obtain a ruling on the validity of a framework decision or decision of the Council in order to resolve the dispute
         before it, it follows that under Union law such an assessment may also be made directly by that court, without prior reference
         to the Court of Justice.
      
      119. Similarly, in my opinion, it must be held that the possibility for a Member State, on the basis of Article 35(3)(a) EU, to
         reserve to the courts of last instance alone the power to make a reference for a preliminary ruling means that if the lower
         courts consider an assessment of the validity of a framework decision or decision of the Council to be necessary they can
         make it themselves. It does not seem sensible to hold that individuals must work fruitlessly through one or more levels of
         jurisdiction before being able to raise a question of validity and have it resolved.
      
      120. Naturally, an assessment of validity or invalidity made directly by the national court will have effect only in the domestic
         case and not erga omnes.
      
      121. On the other hand, I see no imperative reason to preclude national courts from having the power to determine that framework
         decisions or decisions under Article 34 EU are invalid. It is true that, with reference to Article 234 EC, in the Foto-Frost judgment (60) the Court established the rule that the national courts have no jurisdiction themselves to declare that acts of Community
         institutions are invalid. In the context of Article 234 EC that rule (hereinafter also referred to as ‘the Foto-Frost rule’) also applies to lower courts – which under that article have an option and not an obligation to make a reference –
         but it does not appear to apply in the context of Title VI of the EU Treaty.
      
      122. In this regard, I observe that the two assumptions on which the Court based its interpretation in the Foto-Frost judgment regarding the exclusive jurisdiction of the Community court to determine that acts of the Community institutions
         are invalid do not apply in the context of Title VI of the EU Treaty.
      
      123. First, it cannot be said – as the Court was able to do with reference to Articles 230 EC and 241 EC on the one hand and Article 234 EC
         on the other and in relation to measures adopted by Community institutions (61) – that Title VI of the EU Treaty established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of the Council measures referred to in Article 34 EU. Indeed, it is clear that the jurisdiction conferred on the Court of Justice by Article 35 EU alone does not constitute a complete system of legal remedies and procedures such as to ensure review of the legality of such measures; as proof, one need only consider
         that a reference for a preliminary ruling on validity is not possible in the Member States that have not made a declaration
         in accordance with Article 35(2) EU, given the lack of provision for any direct recourse to the Court of Justice by individuals
         against such acts.
      
      124. In paragraph 35 of the Pupino judgment, (62) the Court itself noted, on the other hand, that its jurisdiction ‘by virtue of Article 35 EU … is less extensive under Title VI
         of the [EU] Treaty than it is under the EC Treaty’.
      
      125. For the sake of completeness, I would add that in paragraph 35 of that judgment the Court simultaneously noted that ‘there
         is no complete system of actions and procedures designed to ensure the legality of the acts of the institutions in the context
         of Title VI’. That observation must, however, be read against the background of the reasoning that led the Court to make it.
         The Court was responding to arguments raised before it by a number of Member States that deduced from the lesser degree of
         integration in police and judicial cooperation in criminal matters than in the action of the Community that it was impossible
         to accord to a framework decision under Article 34 EU the so-called indirect effects (obligation for national courts to interpret
         national law in conformity with Community law) that are recognised in the case of Community directives. The Court therefore
         considered that the circumstances it described in paragraph 35 of that judgment confirmed the lesser degree of integration
         under Title VI of the EU Treaty than under the EC Treaty, and then nevertheless concluded that the degree of integration had
         no influence for the purposes of the question on which it had been called upon to rule. (63) In my opinion, the absence of a ‘complete system of actions and procedures designed to ensure the legality of the acts of
         the institutions in the context of Title VI’ can constitute a relevant indicator of weak integration in so far as it refers
         to the supranational level.
      
      126. I therefore consider that the passage from the Pupino judgment reproduced in the preceding point should not be treated simply as an obiter dictum but should be construed as meaning, in the light of the context in which it appears, that Title VI does not confer on the Court of Justice sufficient jurisdiction to ensure a review of the legality of the acts of the institutions. That is precisely what I have
         observed in point 123 above.
      
      127. Secondly, to invoke the second assumption on which the Court based the Foto-Frost rule – namely that the main purpose of the power to give preliminary rulings under Article 234 EC is ‘to ensure that Community
         law is applied uniformly by national courts’ (64) – in order to assert that a similar rule also existed in the context under examination would carry little conviction. In
         fact, the à la carte regime of the power to give preliminary rulings under Article 35 EU is patently an inappropriate means of ensuring the uniform
         application of Union law by national courts.
      
      128. In this regard, I would point out that various Member States of the Union, as is their right under Article 35 EU, have not
         so far accepted that jurisdiction; as I have noted above, their courts must therefore consider themselves authorised to make
         their own assessment of both the scope and the validity of framework decisions and decisions under Article 34 EU when necessary
         to decide cases before them. For that reason alone, the uniform application of Union law in the area under examination is
         not guaranteed, even leaving aside doubts whether these courts are bound by the preliminary rulings delivered by the Court
         at the request of the courts in Member States that have accepted that jurisdiction.
      
      129. Moreover, the fact that Article 35 EU allows Member States to preclude references for preliminary rulings by courts other
         than those of last instance heightens the risk of a lack of uniformity in the application of Union law by national courts
         under Title VI of the EU Treaty, since some national cases are concluded without reaching the court of last instance.
      
      130. It must therefore be recognised that the uniform application of Union law by national courts in the context of the third pillar
         of the Union is not currently guaranteed (not even, it should be noted, if a rule such as the Foto-Frost rule were recognised in that sphere). The risk of inconsistency in the application of the Council acts referred to in Article 34 EU
         is certainly a drawback of the judicial system constructed by the Treaty of Amsterdam for that pillar. However, in my opinion,
         a far more serious problem would flow from a reading of the provisions of the EU Treaty that sacrificed the judicial protection
         of rights that is inherent in a Community based on the rule of law, even though assiduously pursuing the objective of the
         uniform application of Union law in the context of the third pillar.
      
      131. I would add that an interpretation of Article 35 EU consistent with the principle of respect for the fundamental right to
         such protection means that the Court cannot be granted exclusive jurisdiction to rule that an act adopted by the Council under
         Article 34 EU is invalid where individuals are not only denied direct access to the Community court but, given the purely
         optional nature of references for preliminary rulings even by national courts of last instance, are also denied adequate guarantees
         that the question of validity they have raised will be referred to the Court by that mechanism even in the Member States that
         have accepted the jurisdiction of the Court to give preliminary rulings.
      
      132. I have made this digression on the model of the Court’s power to give preliminary rulings laid down in Article 35 EU to show
         that the Member States have defined a judicial system for the third pillar of the Union in which the involvement of the Court
         of Justice, the supranational court, is more limited than under the EC Treaty and in which as a consequence wider jurisdiction is left to the national courts. This should come as no surprise, however, given that, partly as a result
         of the amendments contained in the Treaty of Amsterdam, police and judicial cooperation in criminal matters does not yet have
         the pronounced supranational features that characterise the action of the Community and remains halfway between pure intergovernmental
         cooperation and the Community ‘integrationist’ model. Further evidence of the enhanced role of national courts in the matters
         of the third pillar is to be found in Declaration 7 on Article 30 EU annexed to the Final Act of the Intergovernmental Conference
         of Amsterdam, which states that ‘[a]ction in the field of police cooperation under Article [30 EU], including activities of
         Europol, shall be subject to appropriate judicial review by the competent national authorities in accordance with rules applicable
         in each Member State’.
      
      –        Nature of the judicial remedy available before national courts
      133. I have shown above that in the context of the third pillar of the Union as well it is for the Member States to establish a
         system of legal remedies and procedures which ensure respect for the right to effective judicial protection and for their
         courts to interpret and apply the national procedural rules governing the bringing of actions in such a way as to ensure such
         protection. This means that the judicial protection which individuals must be held to have, under Union law, in national courts
         in relation to the action of the Union in the context of the third pillar is not limited to the mere possibility, expressly
         provided for in Article 35(1) EU, of indirectly challenging the validity of framework decisions and decisions (objection of
         invalidity in the context of a direct action against national implementing measures). It also includes, in particular, the
         right to challenge directly the validity of such acts and of common positions mentioned in Article 34(a) EU, where, despite
         having no direct effects, they are nevertheless likely of themselves, irrespective of national implementing measures, to cause
         immediate harm to the legal position of individuals; the purpose of such a challenge is to obtain at least compensation for
         any damage they may have caused.
      
      134. In the latter regard, I consider that recognition of the right to such compensation is prevented neither by the failure to
         insert a specific provision in the EU Treaty expressly creating that right or the associated liability nor by the absence
         of a reference in the provisions of that Treaty, in particular in Article 41 EU, to the second paragraph of Article 288 EC.
         Indeed, the right in question is, as I have already indicated in point 96 above, a component of the right to the effective judicial protection of rights, (65) and furthermore it can be deduced – if not from customary international law, as the appellants allege – at least from the
         general principles common to the legal systems of the Member States, recourse to which must be held to be available in order
         to close the gaps in Union law due to the absence of written rules.
      
      135. As the Court has already had occasion to note in order to assert the principle of the State’s liability for damage caused
         by breach of its obligations under Community law, the principle of the non-contractual liability of the Community expressly
         laid down in Article 288 EC ‘is simply an expression of the general principle familiar to the legal systems of the Member
         States that an unlawful act or omission gives rise to an obligation to make good the damage caused’. (66) It can therefore be said that the principle of the public authorities’ liability for damage caused to individuals as a result
         of breaches of Union law, in particular infringement of the fundamental rights accorded to them by that law, is inherent in
         the system of the EU Treaty. (67)
      
      136. The existence of that liability, moreover, was essentially recognised by the Council in the declaration concerning the right
         to compensation, in which the institution ‘recalls’ that ‘any error’ as to persons, groups or entities involved gives the
         injured party that right.
      
      137. In addition, the principle of the public authorities’ liability for damage caused to individuals as a result of breaches of
         Union law is explicitly specified, in the context of police and judicial cooperation in criminal matters, in some of the provisions
         of the Europol Convention. On the premiss stated in the preamble to that Convention that, ‘in the field of police cooperation,
         particular attention must be paid to the protection of the rights of individuals, and in particular to the protection of their
         personal data’, Articles 38 and 39(2) of that Convention lay down respectively the principle of non-contractual liability
         of each Member State for any damage caused to an individual by unauthorised or incorrect data processing by Europol and that
         of the non-contractual liability of Europol for damage caused through the fault of its organs, of its deputy directors or
         of its employees in the performance of their duties.
      
      138. It is appropriate to point out that the principle of loyal cooperation dictates that when national courts assess the legality
         of acts adopted by the Council under Article 34 EU, including an assessment made in an action for damages, they should do
         so in the light of the relevant provisions and general principles of Union law, especially the fundamental rights under Article 6(2) EU, namely those guaranteed by the ECHR and those stemming from the
         constitutional traditions common to the Member States. Reference by the national court to the constitutional provisions of
         its own legal system may not be sufficient to guarantee the standard of protection of fundamental rights deriving from Article 6(2) EU,
         to the extent that, as is repeatedly observed, that standard is not the ‘lowest common denominator’ of protection afforded
         to fundamental rights by the constitutional laws of the Member States but rather a high level of protection appropriate to
         the needs of Union law. Against that background, it will moreover be for national courts to assess any limitation on the exercise
         of fundamental rights that correspond to objectives of general interest, (68) taking account less of the needs of the State to which they belong than of the needs of the Union as a whole.
      
      139. Application of the standard of protection required by Article 6(2) EU could undoubtedly pose some difficulties to the national
         court and involve it in clarifying the fundamental rights recognised by the Union, a task hitherto performed mainly by the
         Community court. Such difficulties should not, however, be exaggerated. National courts can rely for that purpose on the provisions
         of the Charter and on Community case-law, as well as on the provisions of the ECHR and the case-law of the European Court
         of Human Rights. In order to assess the legality of the Council acts described in Article 34 EU, at least those mentioned
         in Article 35(1) EU, national courts may naturally seek the assistance of the Court, to the extent that the choices made by
         the respective States under Article 35(2) and (3) EU allow, by making a reference for a preliminary ruling on validity. In
         any case, the difficulty in question cannot justify preferring the absence of judicial protection of fundamental rights, which
         result from Article 6(2) EU, in the context of Title VI of the EU Treaty.
      
      140. Naturally, in the absence of rules of Union law, it is for the internal legal order of each Member State to designate the
         competent court and lay down the procedural rules for actions for damages intended to safeguard the fundamental rights which
         the Union grants to individuals against acts adopted by the Council under Article 34 EU. (69) The limits on the procedural autonomy of Member States represented by the principles of equivalence and effectiveness developed
         by the case-law of the Court on the EC Treaty (70) and likely to be transposed to the third pillar of the Union will apply in this regard.
      
      –       Practicability and effectiveness of compensation claims before national courts in relation to specific issues
      141. In the contested orders, (71) the Court of First Instance considered that an action to establish the individual liability of each Member State before the
         national courts on account of their involvement in the adoption of Common Position 2001/931 and subsequent ones updating it
         was ‘of little effect’.
      
      142. I do not agree with that assessment, for which the Court of First Instance gave no reasons.
      143. Undoubtedly, a number of questions arise for the purpose of assessing the practicability and effectiveness of a claim for
         redress for the infringement of the appellants’ rights before national courts. I shall briefly list and describe those questions,
         solely to show that answers can be found and that such protection is therefore not merely a theoretical possibility, since
         the search for the most adequate answer is not necessary for the purpose of ruling on the present appeals and it will be for
         the national court seised.
      
      144. First, there arises the question as to the identity of the person potentially liable to make good the alleged damage. In essence,
         against whom should the appellants bring an action before the national courts to obtain compensation for the damage allegedly
         caused by the inclusion of Gestoras Pro Amnistía and Segi on the list of persons involved in terrorist acts? Would non-contractual
         liability fall on the Union as such or, jointly and severally, on the individual Member States, which unanimously adopted
         Common Position 2001/931 and the subsequent positions updating it? The reply to that question will depend on the answer to
         the question of the legal personality of the Union, which has been extensively debated in the literature. In that regard,
         I note that for Europol, as for the European Community, the explicit Treaty provision establishing non-contractual liability
         is accompanied by the express attribution both of legal personality and, in each of the Member States, of the most extensive
         legal capacity available to legal persons under national law, including the capacity to be a party to legal proceedings. (72)
      
      145. Secondly, there is the problem of identifying the national legal system competent to hear the hypothetical action for damages.
         That problem is to some extent linked to that of the capacity to be sued.
      
      146. If non-contractual liability lies with the Union as an international organisation with legal personality, an action could
         be brought in the courts of the State (and place) where the harmful event occurred or may occur, in accordance with the criterion
         laid down in Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and
         enforcement of judgments in civil and commercial matters. (73) I note, moreover, that Article 39 of the Europol Convention makes reference to the relevant provisions of the Brussels Convention
         of 27 September 1968 (now replaced, as between Member States, by the abovementioned regulation) to determine the national
         courts competent to deal with disputes involving Europol’s liability.
      
      147. If, however, non-contractual liability rests with the individual Member States, it could be enforced against each State, essentially
         in the courts of that State, on the basis of the criterion of the jurisdiction of the defendant’s domicile laid down in Article 2(1)
         of Regulation No 44/2001. Alternatively, in accordance with the criterion laid down in Article 5(3) of that regulation, the
         action could be brought in the courts of the State in which the harmful event occurred or may occur against that State.
      
      148. Note should be taken, however, of the mechanism established by Article 38 of the Europol Convention to engage the liability
         of the Member States for damage caused as a result of unauthorised or incorrect data processing by Europol. In providing that
         ‘each Member State’ is liable for such damage, that article lays down that ‘[o]nly the Member State in which the event which
         gave rise to the damage occurred may be the subject of an action for compensation on the part of the injured party, who shall
         apply to the courts having jurisdiction under the national law of the Member State involved’. It goes on to state that ‘a
         Member State may not plead that another Member State [or Europol] had transmitted inaccurate data in order to avoid its liability
         … vis-à-vis an injured party’. Finally, it establishes a right for the State that had to pay compensation to be reimbursed
         if the conduct which caused the damage is attributable to Europol or to another State.
      
      149. Thirdly, the problem of jurisdictional immunity of States and international organisations could prove a procedural obstacle
         to the effectiveness of a right to bring an action for compensation in the national court against Council acts adopted under
         Article 34 EU.
      
      150. If it were held that non-contractual liability rested with Member States individually, the problem might arise only if the
         appellants intended to enforce the liability of a Member State in the courts of another Member State. It would obviously not
         arise in the more realistic hypothesis of an action brought against a Member State in its own courts. The States’ jurisdictional
         immunity would therefore not be an absolute impediment to claiming the right to compensation in national courts.
      
      151. On the other hand, if it were held that it was the Union as such, in other words in its capacity as an international organisation
         with legal personality, that bore liability for damages, besides the fact that the EU Treaty and the protocols annexed thereto
         do not confer jurisdictional immunity on the Union (just as the EC Treaty and its protocols do not confer it on the Community (74)), I believe it can be held that where such immunity is accorded to international organisations by the domestic law of the
         jurisdiction seised or is recognised by the latter as deriving from customary international law, the Council is obliged to
         waive it under Union law if invoking it would entail a denial of justice. In particular, in a case such as the present one,
         such immunity for the Union should be ruled out in that it is likely to impair the effectiveness of the principle of non-contractual
         liability for damage caused by unlawful acts adopted by the Council and is incompatible with the principle of the effective
         judicial protection of rights.
      
      152. In any event, the Council declaration concerning the right to compensation, which was made when Common Position 2001/931 was
         adopted, could be interpreted as an at least implied waiving of jurisdictional immunity as regards possible damage resulting
         from an unlawful inclusion on the list of persons involved in terrorist acts, in that it refers to the right ‘to seek legal
         compensation’.
      
      153. I would also add that the literature has recently documented a trend in international and domestic judicial practices to limit
         the jurisdictional immunity of international organisations, removing the absolute immunity they had under the more traditional
         concept. That limitation is often applied not only according to the type of activity of the international organisation giving
         rise to the dispute (iure imperii or iure gestionis) but also, in order to ensure respect for the fundamental right of access to the courts, according to whether or not alternative
         and effective means of resolving disputes are available to the private party, such as procedures established within the organisation
         itself or recourse to arbitration tribunals approved by the organisation. (75)
      
      154. Fourthly, taking as given the principle of the right to reparation of damage resulting from unlawful acts adopted by the Council
         under Article 34 EU as a principle inherent in the EU Treaty, there nevertheless arises the problem of identifying the actual
         conditions for such liability and hence the rules applicable in that regard. It seems to me that essentially the following
         options are available: (i) the national legislation of the jurisdiction seised is applied in toto, subject to respect for the principles of equivalence and effectiveness; (ii) where liability can be attributed to a single
         State, the minimum conditions establishing the right to reparation developed by Community case-law on the liability of Member
         States for breaches of Community law are applied, and otherwise national law applies, subject to respect for the principles
         of equivalence and effectiveness; (76) (iii) whether liability rests with the State or the Union, the conditions developed by Community case-law on the non-contractual
         liability of the Community, such as the general principles common to the laws of the Member States (second paragraph of Article
         288 EC), are applied. (77) I note, however, that the Europol Convention provides that where liability for damage resulting from unauthorised or incorrect
         data processing by Europol rests with the Member State the competent national court should apply its national legislation
         (Article 38(1)), but it has nothing to say about the rules applicable in the case of Europol’s non-contractual liability (Article 39).
      
      155. In the light of the foregoing considerations, I do not believe that the scope for the appellants to obtain compensation in
         the national courts falls into a judicial void or encounters obstacles that render it purely illusory.
      
      –        Conclusion regarding judicial protection in the national courts
      156. With regard to the issue examined hitherto, I therefore conclude that, contrary to what the Court of First Instance gave to
         understand in the contested orders (78) and what is maintained in the appeals, under Union law the appellants enjoy the right to compensation in the national courts
         for possible infringement of their (fundamental) rights caused by the abovementioned common positions.
      
      157. The erroneous assessment in this regard by the Court of First Instance did not, however, affect the contested declaration
         of lack of jurisdiction, which is based essentially on the assessments to which I referred in (2) and (4) of point 50 above.
         In that sense, I do not consider that the conditions are met for setting aside the contested orders on account of that erroneous
         assessment.
      
      158. Conversely, given that the appellants have an effective judicial remedy in the national courts, the Community court’s declaration
         of lack of jurisdiction to hear their action for non-contractual liability does not entail, as they claim, an infringement
         of their right to such protection. In that sense, these appeals are based on a false premiss and for that reason alone I consider
         that they should be dismissed.
      
      (e)     Effective judicial protection of rights, principle of conferred powers and jurisdiction of the Community court
      159. It is therefore solely to cover the possibility that, contrary to my recommendation, the Court does not recognise that the
         appellants have an effective judicial remedy before the national courts that I shall devote some remarks to the merit of the
         assessment by the Court of First Instance (see (4 of point 50 above), which the appellants dispute, that the lack of such
         a remedy could not of itself form the basis for the jurisdiction of the Community court in a legal system, such as that of
         the Union, based on the principle of conferred powers. (79)
      
      160. The appellants’ line of argument hinges essentially on a combination of the following elements: their right to effective judicial
         protection within the meaning of Article 6(2) EU; the Council declaration concerning the right to compensation; the eighth
         ‘recital’ of Decision 2003/48; the duty of Member States, on the basis of Article 30(3) of the Vienna Convention and Article 307(1) EC,
         to honour the international obligations previously accepted by their accession to the Charter of the United Nations and the
         ECHR; and lastly the ‘general interpretative principle’ relating to the ‘enlarged jurisdiction’ of the Court of Justice.
      
      161. The Council and the Kingdom of Spain maintain that the appellants’ arguments are entirely unfounded. The Council also contends
         that those based on the last two items mentioned in the preceding point are inadmissible in that they were raised by the appellants
         only in their statements of defence.
      
      162. I have already shown, in point 67 above, that the Council declaration concerning the right to compensation is incapable of
         affecting the powers of the Court of Justice laid down in the EU Treaty. It is obvious that the same assessment should be
         made with regard to the eighth ‘recital’ of Decision 2003/48, which states that ‘[that] Decision respects the fundamental
         rights and observes the principles recognised by Article 6 of the Treaty on European Union’ and none of its provisions ‘may
         be interpreted as allowing infringement of the legal protection afforded under national law to the persons, groups and entities
         listed in the Annex to Common Position 2001/931/CFSP’.
      
      163. The appellants’ argument regarding Article 30(3) of the Vienna Convention and Article 307(1) EC is also irrelevant. This argument,
         like the one concerning an ‘enlarged jurisdiction’ of the Court of Justice, can be examined despite the fact that it was raised
         only in the appellants’ statements of defence, since it is simply an argument in support of a ground already put forward in
         the appeals and the jurisdiction of the Community court is, as I have already pointed out, a public policy issue that the
         Court may in any event examine of its own motion in the light of each relevant element.
      
      164. Article 30 of the Vienna Convention concerns the rights and obligations of States parties to successive treaties relating
         to the same subject-matter and is not applicable in the present case because, contrary to the appellants’ assertion, it cannot
         be said that the EU Treaty deals with the same subject-matter as the Charter of the United Nations and the ECHR. Moreover,
         the third paragraph of the article provides that ‘[w]hen all the parties to the earlier treaty are parties also to the later
         treaty …, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty’.
         The appellants lose sight of the fact that it is the EU Treaty that is later than the Charter of the United Nations and the
         ECHR.
      
      165. As regards Article 307(1) EC, pursuant to which ‘[t]he rights and obligations arising from agreements concluded before 1 January
         1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one
         or more third countries on the other, shall not be affected by the provisions of … [the EC] Treaty’, it is sufficient to note,
         as does the Council, that it is not applicable in the context of Titles V and VI of the EU Treaty.
      
      166. It therefore remains for me to examine the appellants’ reliance on their right to effective judicial protection within the
         meaning of Article 6(2) EU and the ‘general interpretative principle’ relating to an ‘enlarged jurisdiction’ of the Court
         of Justice that they deduce, in particular, from the judgments in Les Verts v Parliament and the ‘Chernobyl’ case. (80) I shall deal with these two points together. In essence, according to the appellants, in a community based on the rule of
         law such as the Union the Court of Justice is authorised to close gaps in the treaties to assert its own jurisdiction if that
         jurisdiction is not expressly and unequivocally limited or excluded in the treaties and is necessary to ensure the judicial
         protection of individuals’ rights.
      
      167. The principle of conferred powers, which finds expression in Articles 5 EC (with regard to the Community), 7 EC (with regard
         to the Community institutions) and 5 EU (with regard to the institutions forming the single institutional framework of the
         Union), does not imply a necessarily explicit conferment of powers. Article 308 EC on the implied powers of the Community
         proves the point. Powers can also be implied and deduced by interpreting the provisions of the treaties, even in a broad sense,
         subject to respect for the letter and structure of the provisions.
      
      168. In my opinion, in the judgments in Les Verts v Parliament and Chernobyl, on which the applicants rely – as also in the judgments in ERTA, (81)Greece v Council (82) and Simmenthal v Commission (83) – the Court simply defined the scope of the provisions of the EEC Treaty regarding actions for annulment and objections of
         invalidity by giving a systematic teleological interpretation or one conducted in such a way as to ensure an outcome consistent
         with general principles or requirements of Community law (such as observance of the institutional balance, the need for a
         complete and consistent review of the legality of an act, the judicial protection of rights), but without thereby offending
         against the letter and structure of the Treaty. In particular, ‘where the provisions are silent’ the Court has been able to
         interpret them ‘in the light of the overriding requirement that the most suitable legal protection be provided’. (84)
      
      169. Conversely, in the judgment in Unión de Pequeños Agricultores v Council, (85) the Court held that an interpretation of the requirement to be individually concerned within the meaning of Article 173 of
         the EC Treaty, made in the light of the principle of effective judicial protection, could not have the effect of setting aside
         the condition in question, expressly laid down in the Treaty, without going beyond the jurisdiction conferred by the Treaty on the Community courts. The broad
         interpretation of that provision invoked by the appellant, in the name of that principle, was prevented by the letter of the
         Treaty.
      
      170. Nor should it be overlooked that there are more stringent judgments than those cited in point 168 above in which the Court,
         despite claims that the provisions on the institution of actions for annulment needed to be interpreted widely in order to
         ensure individuals’ legal protection, nevertheless interpreted the limits of its own jurisdiction by adhering strictly to
         the situations expressly contemplated by the relevant provision. (86)
      
      171. It seems to me that in the present cases the situation is more akin to that prevailing in Unión de Pequeños Agricultores v Council than to those obtaining in the cases resolved in the judgments mentioned in point 168 above. The combined provision of Articles 46 EU
         and 35 EU means that the list of the powers of the Court of Justice they contain is explicit, thus excluding, in particular,
         the jurisdiction of the Community court to hear actions for compensation for damage caused by acts adopted by the Council
         under Article 34 EU.
      
      172. Moreover, in the judgments cited in point 168 above, the Court in essence only stated a number of the conditions (relating
         to the persons entitled to bring actions, the grounds of invalidity on which they may rely or the acts open to challenge under
         Article 173 or 184 of the EEC Treaty) for exercising one kind of jurisdiction which had clearly been conferred on it by those
         provisions, namely the power to annul acts of the institutions or to declare them inapplicable. In the case in point, by contrast,
         the appellants are asking the Community court to exercise a type of jurisdiction, namely the power to award compensation for
         damages, that is not to be found in Article 35 EU.
      
      173. If the problem is therefore, to quote the words of Advocate General Jacobs, (87) ‘how to ensure – within the limitations imposed by the wording and structure of the Treaty – that individual applicants are
         granted effective judicial protection’, the reply in a case such as the present one is, as I have indicated, to recognise
         that an action for the compensation sought by the appellants is brought in the national court and not in the Community court.
         If, however, contrary to what I maintain, it were to be held that a remedy of this kind in the national court were not admissible,
         recognising as an alternative the jurisdiction of the Community court would constitute not a wide interpretation or an interpretation
         praeter legem but an interpretation contra legem of the combined provision of Articles 46 EU and 35 EU.
      
      174. In this second hypothesis, there would be an insoluble conflict between the general principle of effective judicial protection
         of rights, which is recognised indirectly in Article 6(2) EU, and the principle of conferred powers enshrined in Article 5 EU
         and the combined provision of Articles 46 EU and 35 EU.
      
      175. This conflict is similar to the one between the general principle of effective judicial protection of rights and the principle
         of conferred powers enshrined in Article 7 EC and Article 173 of the EC Treaty, which the Court implicitly took into account
         in paragraph 44 of the judgment in Unión de Pequeños Agricultores v Council and which it resolved by granting priority to the principle of conferred powers and Article 173 of the EC Treaty, as correctly
         observed by the Court of First Instance in paragraph 38 of the contested orders.
      
      176. I do not believe that on other occasions the Court has had to examine a situation involving a clear and insoluble conflict
         requiring a stark choice between provisions and primary principles. (88) I note, moreover, that the rules that would come into conflict in the present case are all in a sense ‘constitutional’, in
         that they relate on the one hand to the identification of the fundamental limits to the exercise of public power vis-à-vis
         the individual and, on the other, to the distribution of that power among the various institutions charged with exercising
         it.
      
      177. To give priority to the fundamental right to effective judicial protection and to disapply for that purpose the relevant provisions
         of the EU Treaty on the powers of the Court of Justice would necessitate recognising that there was also a hierarchy among
         primary rules and a kind of ‘supra-constitutional’ value in the respect for fundamental rights. I consider that such an approach,
         while not in itself alien, is not permissible in the present state of Union law, not least because the current treaties do not explicitly list the fundamental rights guaranteed by the Union. The Charter
         cannot, in my opinion, make good the lack of such a list, since it is only a source of inspiration for the Community court
         and national courts in clarifying the fundamental rights protected by Union law as general principles and has no binding legal
         force. That limitation would obviously no longer apply if all the Member States ratified the Treaty establishing a Constitution
         for Europe, Part II of which lists the fundamental rights, among which is expressly enshrined, in Article II-107, the ‘right
         to an effective remedy and to a fair trial’.
      
      178. While repeating again that, in my opinion, the appellants are not denied effective judicial protection of the rights which
         they claim were infringed by the contested inclusion on the list of persons involved in terrorist acts but enjoy such protection
         in the national courts, I consider that, if the Court were to conclude otherwise, it could not in any case assert, in the present state of Union law, that the Community court has jurisdiction to hear the actions for damages brought by the appellants before the Court of
         First Instance. Hence, the Court of First Instance did not err in law in finding that the lack of provision for a judicial
         action to protect the appellants’ rights did not of itself justify recognising its own jurisdiction to hear such actions.
      
      4.      Final observations
      179. In proposing that the Court dismiss the appeals, I wish to make two concluding observations.
      180. First, I consider it appropriate that the Court, in the judgment that it will deliver in the present cases, should recognise
         the jurisdiction of the national courts to hear actions of this kind, in the name of respect for fundamental rights and the
         judicial protection thereof. Recognition of the jurisdiction of the national courts would demonstrate, inter alia, just how
         unfounded is the suspicion often voiced that the jurisdiction of the Court with regard to respect for fundamental rights as
         general principles of Community law is inspired not so much by genuine concern for the protection of such rights as by a desire
         to defend the primacy of Community law and of the Community court in relation to the law and authorities of the Member States.
      
      181. Secondly, I recognise that acknowledging the jurisdiction of the national courts for actions for damages such as those brought
         in the cases before the Court has disadvantages for the uniform application of Union law and hence for legal certainty. Those
         disadvantages should be eliminated by amending the treaties currently in force in order appropriately to widen the jurisdiction
         of the Court of Justice, along the lines of the overhaul carried out by the Treaty establishing a Constitution for Europe.
         In the meantime, with regard to those disadvantages I observe that a little legal ‘uncertainty’ is always preferable to the
         certainty of ‘no law at all’, especially when it comes to the protection of fundamental rights.
      
      V –  Costs
      182. I consider that the arrangement adopted by the Court of First Instance, involving a division of the costs among the parties,
         can be endorsed wholeheartedly and is also valid for the proceedings before the Court of Justice. Going beyond the Council
         declaration concerning the right to compensation, it is entirely understandable that the appellants, to whom Union law affords
         the right to effective judicial protection, chose the Community court as a court competent to hear their claim for compensation,
         and their appeal as well.
      
      183. In my opinion, there are therefore exceptional circumstances that justify sharing the cost among the main parties, in accordance
         with Article 69(3) of the Rules of Procedure.
      
      184. Moreover, under Article 69(4), the Kingdom of Spain must bear its own costs.
      VI –  Conclusion
      185. In the light of the foregoing considerations, I propose that the Court:
      –       dismiss the appeals;
      –       order each party to bear its own costs.
      1 –	Original language: Italian.
      
      2 –	OJ 2001 L 344, p. 93.
      
      3 –      Unofficial translation of the French text placed in the file.
      
      4 –	Not published, but available on the site www.echr.coe.int.
      
      5 –	OJ 2002 L 116, p. 75.
      
      6 –	OJ 2002 L 160, p. 32.
      
      7 –	Paragraph 48 of the contested orders.
      
      8 –	See, inter alia, Case C‑82/98 P Kögler v Court of Justice [2000] ECR I‑3855, paragraph 21.
      
      9 –	See, inter alia, Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraphs 47 and 51.
      
      10 –	Kögler v Court of Justice, paragraph 23.
      
      11 –	OJ 2003 L 16, p. 68.
      
      12 –	In the text, I use the expression ‘Community court’ (and occasionally also ‘Court of Justice’) to mean the Court of Justice
         and the Court of First Instance, even though the present cases relate to their involvement outside the ambit of the first
         pillar of the European Union, constituted by the Communities.
      
      13 –	Unofficial translation of the appeal documents.
      
      14 –	These provide for the freezing and prohibition on the making available of funds and other financial assets or economic
         resources.
      
      15 –	Paragraphs 41 to 47 of the contested orders.
      
      16 –	Paragraph 16 of the statements of defence (unofficial translation). See also paragraph 59 of the appeals.
      
      17 –	Paragraph 45 of the contested orders.
      
      18 –	See paragraph 46 of the contested orders.
      
      19 –	Paragraph 40 of the contested orders.
      
      20 –      Paragraphs 32 and 33 of the contested orders.
      
      21 –      Paragraphs 34 to 37 of the contested orders.
      
      22 –      Paragraph 38 of the contested orders.
      
      23 –      Ibid.
      
      24 –      Paragraph 39 of the contested orders.
      
      25 –	Paragraph 37 of the contested orders.
      
      26 –	The introduction of a specific action before the Community court into the legal system of the Union to protect fundamental
         rights had been raised, along with other proposals, at the Intergovernmental Conference to amend the Treaty of Maastricht,
         but it was not adopted when the Treaty of Amsterdam was approved.
      
      27 –	Paragraph 39 of the contested orders.
      
      28–	I refer to the use of the adverb ‘probably’ in the first sentence of paragraph 38 of the contested orders after the emphatic
         expression ‘it must be noted’. (‘Concerning the absence of an effective remedy invoked by the applicants, it must be noted
         that indeed probably no effective judicial remedy is available to them, whether before the Community Courts or national courts,
         with regard to the inclusion of [Gestoras Pro Amnistía and Segi] on the list of persons, groups or entities involved in terrorist
         acts.’)
      
      29 –	The preamble to the EU Treaty mentions the Member States’ ‘attachment to the principles of liberty, democracy and respect
         for human rights and fundamental freedoms and of the rule of law’.
      
      30 –	C‑540/03 Parliament v Council [2006] ECR I‑0000, paragraph 38.
      
      31 –	Case 294/83 Les Verts v Parliament [1986] ECR 1339, paragraph 23, and Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 38.
      
      32 –	See, in particular, Case C‑260/89 ERT [1991] ECR I‑2925, paragraph 41; Opinion 2/94 [1996] ECR I‑1759, points 33 and 34; Case C‑299/95 Kremzow [1997] ECR I‑2629, paragraph 14; and Case C-540/03 Parliament v Council, paragraph 35.
      
      33 –	See, in particular, Case 222/84 Johnston [1986] ECR 1651, paragraph 18; Case C‑424/99 Commission v Austria [2001] ECR I‑9285, paragraph 45; and Unión de Pequeños Agricultores v Council, paragraph 39.
      
      34 –	The Court has already had occasion to point out that the International Covenant on Civil and Political Rights is one of
         the international instruments for the protection of human rights of which it takes account in applying the general principles
         of Community law (see Case C-540/03 Parliament v Council, paragraph 37, and the case-law cited).
      
      35 –	In paragraph 46 of the appeals, the appellants mention the freedom of expression and the right to the image and reputation
         of Gestoras Pro Amnistía and Segi, and the freedom of expression, freedom of association and right to respect of the private
         life and reputation of their spokespersons.
      
      36 –	See Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments and Decisions 1998‑VIII, p. 3124, § 147, and Waite and Kennedy v.Germany, judgment of 18 February 1999, Reports of Judgments and Decisions 1999‑I, p. 393, § 59.
      
      37 –	United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports of Judgments and Decisions 1998‑I, p. 1, § 29, and Matthews v. the United Kingdom, judgment of 18 February 1999, Reports of Judgments and Decisions 1999-I, p. 251, § 29.
      
      38 –	To assert its ‘identity on the international scene, in particular through the implementation of a common foreign and security
         policy’, constitutes one of the objectives of the Union under Article 2 EU.
      
      39 –	Such clauses, which are deemed ‘essential’ in the context of the agreements, may authorise the contracting parties to suspend
         the agreements and even to withdraw from them if they are breached.
      
      40 –	See Bosphorus v. Ireland, judgment of 30 June 2005, Reports of Judgments and Decisions 2005‑VI, which, as expressly stated in paragraph 72 of the judgment, concerns only the provisions of the ‘first pillar’ of
         the Union.
      
      41 –	By contrast, it seems to me that no doubt can be cast on the appellants’ interest in bringing an action in the present
         case.
      
      42 –	Common positions (Article 34(2)(a) EU, framework decisions (Article 34(2)(b) EU), decisions and measures necessary to implement
         those decisions (Article 34(2)(c) EU) and measures implementing conventions (Article 34(2)(d) EU).
      
      43 –	The theory is well enough known not to require explanation here. It is sufficient to cite, in particular, the judgments
         of the Bundesverfassungsgericht of 22 October 1986, known as Solange II, in BverfGE, 73, 339, and of the Italian Constitutional
         Court of 21 April 1989 No 232, Fragd, in Foro it., 1990, I, 1855.
      
      44 –	I would point out that Article 13 of the ECHR shows that the existence of an external review of Contracting States’ respect
         for rights and fundamental freedoms does not exempt those States from making arrangements for an internal review.
      
      45 –	Paragraph 38 of the contested orders.
      
      46 –	Ibid.
      
      47 –	Ibid.
      
      48 –	As the European Court of Human Rights observed in the decision dismissing the appellants’ actions as inadmissible. That
         Court showed that, although ‘Article 4 could serve as a legal basis for concrete measures that may concern the applicants,
         in particular in the context of police cooperation among States within Community bodies such as Europol’, it does not ‘add
         new powers that can be exercised in relation to the applicants’ but ‘contains only an obligation for the Member States to
         engage in judicial and police cooperation’ (unofficial translation of the French text of the decision).
      
      49 –	See, to that effect, Joined Cases C‑6/90 and C‑9/90 Francovich and Others v Italy [1991] ECR I‑5357, paragraph 33; Joined Cases C‑46/93 and C‑48/93 Brasserie du pêcheur and Factortame and Others [1996] ECR I‑1029, paragraph 22; and Case C‑224/01 Köbler [2003] ECR I‑10239, paragraph 33. See also European Court of Human Rights. Klass and Others v, Germany, judgment of 6 September 1978, Series A No 28, § 64. and Soering v. the United Kingdom, judgment of 7 July 1989, Series A No 161, § 120, from which it was deduced that the effective remedy required by Article 13
         of the EHCR must permit an individual who considers himself to have been prejudiced by a measure in breach of the ECHR to
         have his claim decided and, if appropriate, to obtain redress (‘réparation’ or ‘redressement’ in the French texts of the judgments).
      
      50 –	Moreover, the Treaty establishing a Constitution for Europe also makes provision for bringing a direct action before the
         Community court for the annulment of restrictive measures against natural or legal persons adopted by the Council with regard
         to the common foreign and security policy, despite the limited powers conferred by that Treaty on the Court of Justice in
         that field (Article III-376).
      
      51 –	Opinion of Advocate General Darmon in Johnston, point 3.
      
      52 –	Opinion of Advocate General Léger in Köbler, point 68.
      
      53 –	Under Article 39(1) EU, the European Parliament is merely consulted (and its opinion is not binding) before the adoption
         of framework decisions or decisions and it is not even consulted before the adoption of common positions.
      
      54 –	Case C‑105/03 Pupino [2005] ECR I‑5285, paragraph 42.
      
      55 –	See, by analogy, Unión de Pequeños Agricultores v Council, paragraph 41. The principle was reiterated in Article I‑29(1) of the Treaty establishing a Constitution for Europe, under
         which ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union
         law’.
      
      56 –	See Pupino, paragraphs 38 and 43.
      
      57 –	Convention based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office (Europol
         Convention) (OJ 1995 C 316, p. 2).
      
      58 –	Council Act of 23 July 1996 drawing up, on the basis of Article K.3 of the Treaty on European Union, the Protocol on the
         interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the
         establishment of a European Police Office (OJ 1996 C 299, p. 1).
      
      59 –	OJ 2005 L 327, p. 19.
      
      60 –	Case 314/85 Foto-Frost [1987] ECR 4199.
      
      61 –	Foto-Frost, paragraph 16.
      
      62 –	Pupino, cited above.
      
      63 –	Pupino, paragraph 36 (‘[i]rrespective of the degree of integration envisaged by the Treaty of Amsterdam in the process of creating an ever closer union among the peoples of Europe within the meaning of the second paragraph of
         Article 1 EU, …’). My italics.
      
      64 –	Foto-Frost, paragraph 15.
      
      65 –	In his Opinion in Köbler, point 35, Advocate General Léger pointed out that ‘the principle of State liability [for loss or damage caused to individuals
         by breach of Community law] constitutes the necessary extension of the general principle of effective judicial protection
         or of the “right to challenge a measure before the courts”’.
      
      66 –	Brasserie du pêcheur and Factortame and Others, paragraph 29. In the words of Advocate General Léger (see his Opinion in Köbler, point 85), ‘it is settled case-law that, in order to acknowledge the existence of a general principle of law, the Court
         does not require that the rule be a feature of all the national legal systems. Similarly, the fact that the scope and the
         conditions of application of the rule vary from one Member State to another is not material. The Court merely finds that the
         principle is generally acknowledged and that, beyond the divergences, the domestic laws of the Member States show the existence
         of common criteria’.
      
      67 –	See, by analogy, Brasserie du pêcheur and Factortame and Others, paragraphs 29 and 31.
      
      68 –	See, inter alia, Case 5/88 Wachauf [1989] ECR 2609, paragraph 18, and Article 52 of the Charter.
      
      69 –	See, by analogy, Köbler, paragraphs 46 and 50.
      
      70 –	See, inter alia, Case C-312/93 Peterbroeck [1995] ECR I‑4599, paragraph 12, and Case C‑13/01 Safalero [2003] ECR I‑8679, paragraph 49.
      
      71 –	Paragraph 38 of the contested orders.
      
      72 –	See, for Europol, Article 26(1) and (2) of the Europol Convention and, for the European Community, Articles 281 EC and
         282 EC.
      
      73 –	OJ 2001 L 12, p. 1.
      
      74 –	The jurisdictional immunity of the European Community in the courts of Member States should also be considered to be implicitly
         excluded by Article 240 EC, under which ‘[s]ave where jurisdiction is conferred on the Court of Justice by this Treaty, disputes
         to which the Community is a party shall not on that ground be excluded from the jurisdiction of the courts or tribunals of
         the Member States’.
      
      75 –	I take the liberty of referring in this regard not only directly to the judgments of the European Court of Human Rights
         in Waite and Kennedy v. Germany, cited above, and in Beer and Regan v. Germany of 18 February 1999 (not published, but available at the site www.echr.coe.int), but also to the detailed analysis and review
         of cases in A. Reinisch and U.A. Weber, ‘In the Shadow of Waite and Kennedy. The Jurisdictional Immunity of International
         Organisations, the Individual’s Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute
         Settlement’, International Organisations Law Review, 2004, 1, p. 59, and to E. Gaillard and I. Pingel-Lenuzza, ‘International Organisations and Immunity from Jurisdiction: to
         Restrict or to Bypass’, International and Comparative Law Quarterly, 2002, Vol. 51, p. 1.
      
      76 –	See Köbler, paragraphs 57 and 58.
      
      77 –	Such a situation would ensure equal treatment of persons injured by one and the same act.
      
      78 –	Paragraph 38 of the contested orders.
      
      79 –	Ibid.
      
      80 –	Les Verts v Parliament, in which the Court recognised that acts of the Parliament designed to produce legal effects vis-à-vis third parties could
         be challenged by bringing an action for annulment under Article 173 of the EEC Treaty, and Case C‑70/88 Parliament v Council [1990] ECR I‑2041, which recognised the right of the Parliament to bring an action for annulment under Article 173 of the
         EEC Treaty against an act of the Council or of the Commission allegedly breaching its prerogatives.
      
      81 –	Case 22/70 Commission v Council [1971] ECR 263, paragraphs 38 to 43, in which the Court held that an action for annulment under Article 173 of the EEC Treaty
         must be available against ‘all measures adopted by the institutions which are intended to have legal force’.
      
      82 –	Case C‑62/88 Greece v Council [1990] ECR I‑1527, paragraph 8, in which it was held that a complaint alleging infringement of a rule of the EAEC or ECSC
         Treaties could be examined in proceedings for the annulment of a measure based on a provision of the EEC Treaty, even though
         that possibility was not mentioned in Article 173 of the EEC Treaty.
      
      83 –	Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraphs 40 and 41, in which the Court held that Article 184 of the EEC Treaty was also applicable to general
         acts not in the form of regulations in order to provide individuals with the benefit of judicial review of the lawfulness
         of acts which they cannot challenge.
      
      84 –	It was in these terms that Advocate General Van Gerven referred to the judgment in Les Verts v Parliament in his Opinion in Case C‑70/88 Parliament v Council, point 11.
      
      85 –	Paragraph 44.
      
      86 –	See Case 66/76 CFDT v Council [1977] ECR 305, paragraphs 8 to 12, with regard to the capacity to sue and be sued in actions under Article 33 of the ECSC
         Treaty, and the order of 13 January 1995 in Case C‑253/94 P Roujansky v Council [1995] ECR I‑7, paragraphs 9 and 11, with regard to acts whose legality is subject to review under Article 173 of the EC
         Treaty.
      
      87 –	Opinion of Advocate General Jacobs in Unión de Pequeños Agricultores v Council, point 54.
      
      88 –	In some instances, it has essentially found a balance between fundamental rights and fundamental freedoms guaranteed by
         the EC Treaty (see Case C‑112/00 Schmidberger [2003] ECR I‑5659 and Case C‑36/02 Omega [2004] ECR I‑ 9609).