Osman Ocalan, on behalf of the Kurdistan Workers' Party (PKK) and Serif Vanly, on behalf of the Kurdistan National Congress (KNK) v Council of the European Union.
Date: 2007-01-18
32. In accordance with the Court’s case-law, an appeal is inadmissible if, without even including an argument specifically identifying the error of law allegedly vitiating the decision under appeal, it merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance. By contrast, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see, to this effect, Case C-25/05 P Storck  v OHIM  [2006] ECR I-0000, paragraphs 47 and 48, and the case-law cited).
33. The fourth ground of appeal alleges that the Court of First Instance erred in finding that Osman Ocalan had asserted that the PKK lacked capacity to bring an action. This ground contains detailed criticism of the contested order. Furthermore, it relates to a finding made by the Court of First Instance in the contested order, so it could not have been put forward at first instance.
35. As to the Council’s argument that the fourth ground of appeal is inadmissible because it relates to a finding of fact made by the Court of First Instance, it must be pointed out that, in accordance with the case-law of the Court of Justice, complaints based on findings of fact and on the assessment of those facts in the contested decision are admissible on appeal where the appellant contends that the Court of First Instance has made findings which the documents in the file show to be substantially incorrect or that it has distorted the clear sense of the evidence before it (see, to this effect, Case C-82/01 P Aéroports de Paris  v Commission  [2002] ECR  I-9297, paragraph 56). That is indeed the case here.
37. With regard to the ground’s merits, it must be examined whether the Court of First Instance distorted the clear sense of the evidence. As the Advocate General has indicated in point 42 of her Opinion, there is such distortion where, without recourse to new evidence, the assessment of the existing evidence appears to be clearly incorrect (see, to this effect, Case C-551/03 P General Motors  v Commission  [2006] ECR I-3173, paragraph 54).
61. Regarding the admissibility of this ground of appeal, it is to be remembered that, under Article 118 of the Rules of Procedure of the Court of Justice, Article 42(2) of those rules, which prohibits generally the introduction of new pleas in law in the course of the procedure, applies to the procedure before the Court of Justice on appeal from a decision of the Court of First Instance. In an appeal the Court’s jurisdiction is thus confined to review of the assessment by the Court of First Instance of the pleas argued before it (see Joined Cases C-199/01 P and C‑200/01 P IPK-München  v Commission  [2004] ECR I‑4627, paragraph 52).
64. Where a ground of appeal is admissible, it is in principle for the appellant to set out arguments in support of it as he sees fit, whether by relying on arguments already used before the Court of First Instance or by developing new arguments, in particular in relation to the positions adopted by that Court. If it were otherwise, an appeal would be deprived of part of its purpose (see, to this effect, Storck , paragraph 48, and the case-law cited).
66. As regards the admissibility of the arguments derived from the ECHR, it follows from Article 58 of the Statute of the Court of Justice, in conjunction with Article 113(2) of the Rules of Procedure of the Court of Justice, that, on appeal, an appellant may put forward any relevant argument, provided only that the subject-matter of the proceedings before the Court of First Instance is not changed in the appeal. Contrary to the Council’s assertions, there is no requirement that each argument put forward on appeal must previously have been discussed at first instance. A restriction to this effect cannot be accepted because an appeal would thereby be deprived of a significant part of its purpose.
67. Since it is evident that the present ground of appeal does not change the subject-matter of the proceedings before the Court of First Instance, the Council’s argument concerning the ground’s inadmissibility in so far as it refers to the ECHR is unfounded and must be rejected.
72. In accordance with settled case-law, natural or legal persons can claim to be concerned individually by a measure of general application only if they are affected by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from any other person (see, to this effect, Plaumann  v Commission , at p. 107, and Case C-50/00 P Unión de Pequeños Agricultores  v Council  [2002] ECR I‑6677, paragraph 36).
73. If the KNK runs the risk of having its funds frozen, that is by virtue of an objectively defined prohibition which applies in the same way to all persons subject to Community law. In those circumstances, the KNK cannot claim to be individually concerned, for the purposes of the fourth paragraph of Article 230 EC, by Decisions 2002/334 and 2002/460.
74. In concluding, in particular in paragraphs 45, 46, 51 and 52 of the contested order, that the KNK was not individually concerned for the purposes of the fourth paragraph of Article 230 EC, the Court of First Instance correctly applied that provision as interpreted by the case-law.
76. Fundamental rights form an integral part of the general principles of law the observance of which the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, inter alia, Case C-112/00 Schmidberger  [2003] ECR I-5659, paragraph 71, and Case C‑540/03 European Parliament  v Council  [2006] ECR I-0000, paragraph 35).
77. In addition, Article 6(2) EU provides:
‘The Union shall respect fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, as general principles of Community law.’
109. The European Community is a community based on the rule of law in which its 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. Individuals are therefore entitled to effective judicial protection of the rights they derive from the Community legal order, and the right to such protection is one of the general principles of law stemming from the constitutional traditions common to the Member States. That right has also been enshrined in Articles 6 and 13 of the ECHR (see Unión de Pequeños Agricultores  v Council , paragraphs 38 and 39).
113. In order to be permitted to bring an action on behalf of such an organisation, it is necessary to show that the organisation concerned does indeed wish to bring the action and that the lawyers who claim to represent it have in fact been instructed for that purpose.