Criminal proceedings against E and F.
Date: 2010-06-29
37. By Question 1, the national court asks, in substance, whether the inclusion of DHKP‑C on the list provided for in Article 2(3) of Regulation No 2580/2001(‘the list’), which DHKP-C has not contested before the courts, must be regarded as having produced effects from the outset despite the fact that the entry was initially made in breach of basic procedural safeguards.
38. It is apparent from the information given in the order for reference that, among those safeguards, the national court is referring, in particular, to the duty under Article 296 TFEU to state reasons. Its doubts, in the light of the defendants’ objections, as to whether, given that duty, that listing was legal flow from judgments in which the General Court held that the inclusion of a number of persons, groups or entities on the list was illegal, chiefly because the Council had failed to state reasons for those various listings in the contested decisions and, accordingly, substantive review by the judicature of the European Union was impossible (Case T‑228/02 Organisation des Modjahedines du peuple d’Iran  v Council  [2006] ECR II-4665; judgments of 11 July 2007 in Case T-47/03 Sison  v Council  and Case T-327/03 Al-Aqsa  v Council ; and judgments of 3 April 2008 in Case T‑229/02 PKK  v Council  and Case T-253/04 Kongra-Gel and Others  v Council ).
39. Against that background, the national court is uncertain whether, notwithstanding the fact that DHKP‑C has not sought annulment of its inclusion on the list, the Council decisions must be held illegal for the same reasons in so far as they placed and subsequently maintained that organisation on the list.
40. The national court is also uncertain as to the effect of Decision 2007/445, given the assertion made in the indictment that the inclusion of DHKP‑C on the list had, in any event, been legitimated ex post facto  in view of the procedure which the Council followed for the purposes of adopting that decision, in the course of which the reasons for including DHKP‑C were stated.
41. Thus, Question 1 seeks an examination, in the light of the duty under Article 296 TFEU to state reasons, of the legality of the entry of DHKP‑C on the list and its maintenance on that list by operation of the provisions identified in paragraph 20 above, which, taken together, cover the period between 30 August 2002, the date on which the conduct alleged in the indictment began, and 28 June 2007, the day before the date on which Decision 2007/445 came into effect (‘the inclusion of DHKP-C on the list during the period prior to 29 June 2007’).
42. On the other hand, as is accepted by all the parties who submitted observations to the Court, with the exception of F, Question 1 does not concern the legality of the inclusion of DHKP-C on the list pursuant to Decision 2007/445 and the subsequent Council decisions referred to in paragraph 25 above. Nor – contrary to the position argued for by F – does Question 1 concern the legality of Regulation No 2580/2001.
43. At the outset, it should be emphasised that, by contrast with the case which gave rise to the judgment in Joined Cases C‑402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission  [2008] ECR I‑6351, which concerned a measure freezing the applicants’ assets, the provisions whose legality is under consideration in this reference for a preliminary ruling are relied upon in support of accusations relating to an infringement of Regulation No 2580/2001, which is punishable under the applicable national law by criminal penalties entailing custodial sentences.
44. Against that background, it should be noted that the European Union is based on the rule of law and the acts of its institutions are subject to review by the Court of their compatibility with EU law and, in particular, with the Treaty on the Functioning of the European Union and the general principles of law. The Treaty on the Functioning of the European Union has established a complete system of legal remedies and procedures designed to confer on the judicature of the European Union jurisdiction to review the legality of acts of the institutions of the European Union (see, to that effect, Case C-50/00 P Unión de Pequeños Agricultores  v Council  [2002] ECR I‑6677, paragraphs 38 and 40, and Kadi and Al Barakaat International Foundation  v Council and Commission , paragraph 281).
45. It follows that, in proceedings before the national courts, every party has the right to plead before the court hearing the case the illegality of the provisions contained in legislative acts of the European Union which serve as the basis for a decision or act of national law relied upon against him and to prompt that court, which does not have jurisdiction itself to make a finding of such illegality, to put that question to the Court by means of a reference for a preliminary ruling (see, to that effect, Cases C‑239/99 Nachi Europe  [2001] ECR I‑1197, paragraph 35, and Unión de Pequeños Agricultores  v Council , paragraph 40).
46. The recognition of that right presupposes, however, that the party in question had no right of direct action under Article 263 TFEU by which it could challenge provisions, the consequences of which it is suffering without having been able to seek their annulment (see, to that effect, Ca se C-188/92 TWD Textilwerke Deggendorf  [1994] ECR I‑833, paragraph 23, and Nachi Europe , paragraph 36).
47. Pursuant to Paragraph 34(4) of the AWG, in the case before the referring court, the inclusion of DHKP-C on the list during the period prior to 29 June 2007 serves, together with Regulation No 2580/2001, as the basis for the indictment of the defendants in respect of that period.
48. Accordingly, it is necessary to determine whether, if the defendants had brought an action for annulment of that listing, the admissibility of their action would have been beyond doubt (see, to that effect, Case C-343/07 Bavaria and Bavaria Italia  [2009] ECR I‑0000, paragraph 40).
49. In that regard, it should be pointed out that the defendants themselves were not placed on that list: the entry on the list relates only to DHKP‑C. Moreover, the order for reference does not give any information on the basis of which it could be established that the position occupied by the defendants within DHKP‑C would have conferred on them the power to represent that organisation in an action for annulment brought before the judicature of the European Union.
50. In addition, it cannot be held that the defendants were indisputably ‘directly and individually concerned’ by the listing at issue for the purposes of the fourth paragraph of Article 230 EC, which was applicable at the material time.
51. The reason for this is that, like Regulation No 2580/2001, that inclusion on the list is of general application. It serves, together with that regulation, to impose on an indeterminate number of persons an obligation to comply with specific restrictive measures against DHKP-C (see, by analogy, Kadi and Al Barakaat International Foundation  v Council and Commission , paragraphs 241 to 244).
52. It follows that, as the national court pointed out, the defendants – unlike DHKP‑C – did not have an indisputable right to bring an action under Article 230 EC for the annulment of that listing.
54. The purpose of that duty is, first, to enable the persons concerned to ascertain the reasons for the measure so that they can assess whether it is well founded and, secondly, to enable the competent court to exercise its power of review (see, to that effect, Joined Cases C‑346/03 and C‑529/03 Atzeni and Others  [2006] ECR I‑1875, paragraph 73, and C‑370/07 Commission  v Council  [2009] ECR I‑0000, paragraph 37).
55. In the present case, as the Council confirmed at the hearing, none of the provisions referred to in paragraph 20 above was accompanied by a statement of reasons relating to the legal conditions for the application to DHKP‑C of Regulation No 2580/2001, in particular, those relating to the existence of a decision taken by a competent authority within the meaning of Article 1(4) of Common Position 2001/931 or an explanation of the actual and specific reasons for which the Council considered that the inclusion of DHKP-C on the list was justified, or remained so.
57. The lack of a statement of reasons which vitiates the listing is also liable to frustrate the attempts of the courts to carry out an adequate review of the substantive legality of that listing, particularly as regards the verification of the facts, and the evidence and information relied upon in support of the listing. As F stated at the hearing, the possibility of an adequate review by the courts is indispensable if a fair balance between the requirements of the fight against international terrorism, on the one hand, and the protection of fundamental liberties and rights, on the other, is to be ensured.
59. However, even if it were to be supposed that, by adopting Decision 2007/445, the Council intended to remedy the lack of a statement of reasons for placing DHKP‑C on the list during the period prior to 29 June 2007, that decision cannot, in any circumstances, be relied upon, in conjunction with Paragraph 34(4) of the AWG, as a basis for a criminal conviction in respect of facts relating to that period, without infringing the principle of the non-retroactivity of provisions which may form the basis for a criminal conviction (see, by analogy, Case 63/83 Kirk  [1984] ECR 2689, paragraphs 21 and 22; Case C-331/88 Fedesa and Others  [1990] ECR I‑4023, paragraph 44; and Joined Cases C‑387/02, C‑391/02 and C‑403/02 Berlusconi and Others  [2005] ECR I‑3565, paragraphs 74 to 78).
66. On the contrary, the prohibition laid down in Article 2(1)(b) of Regulation No 2580/2001 is framed in particularly broad terms (see, by analogy, Case C‑117/06 Möllendorf and Möllendorf-Niehuus  [2007] ECR I‑8361, paragraph 50).
67. The expression ‘made available’ has a wide meaning, encompassing all the acts necessary if a person, a group or an entity on the list is effectively to obtain full power of disposal in respect of the funds, other financial assets and economic resources concerned (see, by analogy, Möllendorf and Möllendorf-Niehuus , paragraph 51).
69. The notion of ‘funds, other financial assets and economic resources’ as used in Regulation No 2580/2001 also takes on, by virtue of the related definition given in Article 1(1) of that regulation, a wide meaning which covers assets of every kind, however acquired. It is not important, in that regard, whether own assets or assets which have been collected or obtained from third persons are concerned.
72. As the European Commission has argued, the interpretation of Regulation No 2580/2001 also implies that account must be taken of the wording and purpose of Resolution 1373 (2001), to which the third recital in the preamble to that regulation refers (see, by analogy, Möllendorf and Möllendorf-Niehuus , paragraph 54, and Case C‑340/08 M and Others  [2010] ECR I‑0000, paragraph 45).
74. The broad and unambiguous wording of the provisions referred to in paragraphs 71 and 73 above confirms that Article 2(1)(b) of Regulation No 2580/2001 encompasses acts such as those referred to in Questions 2 and 3.
77. As for the defendants’ contention that it has not been established that the funds which they transferred were actually used by DHKP‑C to finance terrorist activities, it should be pointed out that both the definition in Article 1(1) of Regulation No 2580/2001 and the terms of Article 2(1)(b) of that regulation render it irrelevant. Funds made available for the benefit of an organisation on the list carry with them the danger that they may be diverted in order to support such activities (see, by analogy, M and Others , paragraph 57). Such ‘making available’ is thus covered by the prohibition laid down in Article 2(1)(b) and is punishable by the criminal penalties provided for under the applicable national law, regardless of whether it has been established that the funds were actually used by the organisation at issue for activities of that nature.