Chafiq Ayadi v European Commission.
Date: 2013-06-06
15. In paragraph 24 of the order under appeal, the General Court recalled the case-law according to which the objective of the dispute, like an applicant’s interest in bringing proceedings, must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (see Case C‑362/05 P Wunenburger  v Commission  [2007] ECR I‑4333, paragraph 42 and the case-law cited; see also, to that effect, Joined Cases T‑494/08 to T‑500/08 and T‑509/08 Ryanair  v Commission  [2010] ECR II‑5723, paragraphs 42 and 43).
23. As regards, secondly, the fact that an applicant may retain an interest in seeking the annulment of an act of a European Union institution in order to prevent its alleged unlawfulness recurring in the future, the General Court recalled, in paragraph 35 of the order under appeal, that such an interest in bringing proceedings, which follows from the first paragraph of Article 266 TFEU, can exist only if the alleged unlawfulness is liable to recur in the future independently of the circumstances of the case which gave rise to the action ( Wunenburger  v Commission , paragraphs 51 and 52). In the case in point, however, according to the General Court, there was nothing in the file to suggest that that might happen. On the contrary, as Regulation No 1081/2011 was adopted in view of the specific position of Mr Ayadi and, apparently, of developments in the situation in Libya, the General Court considered that it did not appear likely that the alleged unlawfulness might recur in the future independently of the circumstances which had given rise to the action.
24. As regards, thirdly, the argument that there is an overriding public interest in having the alleged infringement of a mandatory rule of international law penalised, the General Court considered, in paragraph 36 of the order under appeal, that, whilst the Commission should not be acknowledged as having any impunity in that regard, that argument was not sufficient to establish that Mr Ayadi had a personal interest in the continuation of the action. Even though, as observed by Mr Ayadi, the Commission must comply with mandatory rules of international law and is not entitled to adopt a decision based on information obtained under torture, Mr Ayadi is not, according to the General Court, entitled to act in the interests of the law or of the institutions and may put forward only such an interest and claims as relate to him personally (see, to that effect, Case 85/82 Schloh  v Council  [1983] ECR 2105, paragraph 14).
33. In support of his appeal, Mr Ayadi asserts his right to an effective remedy and to effective judicial protection. In addition to the Court’s case-law (Case C‑50/00 P Unión de Pequeños Agricultores  v Council  [2002] ECR I‑6677, paragraphs 38 and 39, and Case C‑229/05 PKK and KNK  v Council  [2007] ECR I‑439, paragraphs 76 and 77), he relies upon Articles 47 and 52(3) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and upon Article 7 of the Charter, a provision which is equivalent to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), and which provides that everyone has the right to respect for his or her private and family life, home and communications.
40. It must be pointed out that the application of Article 113 of the Rules of Procedure of the General Court does not guarantee that an oral procedure will be opened, as the General Court may, under Article 114(3) of its Rules of Procedure, to which Article 113 refers, give its decision following a solely written procedure (Case C‑547/03 P AIT  v Commission  [2006] ECR I‑845, paragraph 35; Case C‑417/04 P Regione Siciliana  [2006] ECR I‑3881, paragraph 37; and Abdulrahim  v Council and Commission , paragraph 42).
59. In paragraph 24 of the order under appeal, the General Court recalled the settled case-law according to which an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible. That purpose must, like the interest in bringing proceedings, continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (see Wunenburger  v Commission , paragraph 42 and the case-law cited; Joined Cases C‑373/06 P, C‑379/06 P and C‑382/06 P Flaherty and Others  v Commission  [2008] ECR I‑2649, paragraph 25; and Abdulrahim  v Council and Commission , paragraph 61).
61. The Court has thus held, in particular, that an applicant may retain an interest in claiming the annulment of a decision either in order to be restored to his original position (Case 92/78 Simmenthal  v Commission  [1979] ECR 777, paragraph 32) or in order to induce the author of the contested act to make suitable amendments in the future, and thereby avoid the risk that the unlawfulness alleged in respect of that act will be repeated (see, to that effect, Simmenthal  v Commission , paragraph 32; Case 53/85 AKZO Chemie and AKZO Chemie UK  v Commission  [1986] ECR 1965, paragraph 21; Wunenburger  v Commission , paragraph 50; and Abdulrahim  v Council and Commission , paragraph 63).
62. In a case between an undertaking which had been unlawfully excluded from a tender procedure and the Commission, the Court held that even where, because of the circumstances, it proves impossible to fulfil the obligation, owed by the institution whose act has been annulled, to take the necessary measures to comply with the judgment annulling the act, the application for annulment may retain an interest as the basis for possible proceedings for damages (Case 76/79 Könecke Fleischwarenfabrik  v Commission  [1980] ECR 665, paragraph 9).
68. It is to be borne in mind that restrictive measures adopted under Regulation No 881/2002 have substantial negative consequences and a considerable impact on the rights and freedoms of the persons covered (see, to that effect, Kadi and Al Barakaat International Foundation  v Council and Commission , paragraphs 361 and 375). Apart from the freezing of funds as such which, through its broad scope, seriously disrupts both the working and the family life of the persons covered (see, inter alia, Case C‑340/08 M and Others  [2010] ECR I‑3913) and impedes the conclusion of numerous legal acts (see, inter alia, Case C‑117/06 Möllendorf and Möllendorf-Niehuus  [2007] ECR I‑8361), account must be taken of the opprobrium and suspicion that accompany the public designation of the persons covered as being associated with a terrorist organisation.
70. Indeed, whilst recognition of the illegality of the contested act cannot, as such, compensate for material harm or for interference with one’s private life, it is nevertheless capable, as Mr Ayadi has submitted, of rehabilitating him or constituting a form of reparation for the non-material harm which he has suffered by reason of that illegality, and of thereby establishing that he retains his interest in bringing proceedings (see, to that effect, Case 155/78 M.  v Commission  [1980] ECR 1797, paragraph 6; Case C‑343/87 Culin  v Commission  [1990] ECR I‑225, paragraph 26 and the case-law cited; and Abdulrahim  v Council and Commission , paragraph 72).
76. That conclusion contradicts, however, the Court of Justice’s case-law, from which it is apparent that if, as in the case in point, recognition of the alleged illegality is such as to procure an advantage for the applicant, it establishes that his interest in bringing proceedings for annulment is retained even where the contested act has ceased to have effect after he brought his action (see, to that effect, M.  v Commission , paragraphs 5 and 6; AKZO Chemie and AKZO Chemie UK  v Commission ; Culin  v Commission , paragraphs 27 to 29; and Abdulrahim  v Council and Commission , paragraph 79).
77. Finally, that conclusion can likewise not be inferred from the case-law of the General Court mentioned by the latter in paragraph 29 of the order under appeal and recalled in paragraph 18 of the present judgment, because that case-law is founded on the premiss, explained in paragraph 30 of the order under appeal, that an interest in bringing proceedings exists only where the annulment of an act makes it necessary for measures to be taken by the institution which adopted the act, in accordance with Article 266 TFEU. However, the interest in securing the annulment of the contested act is retained where, as in the case in point, its annulment is such as to procure an advantage for the applicant, irrespective of whether it will be unnecessary or in practice impossible for the defendant institution to adopt measures under Article 266 TFEU to comply with the judgment annulling that act (see, to that effect, Könecke Fleischwarenfabrik  v Commission , paragraph 9; M.  v Commission , paragraph 6; AKZO Chemie and AKZO Chemie UK  v Commission , paragraph 21; Culin  v Commission , paragraph 26; and Abdulrahim  v Council and Commission , paragraph 80).