Gerda Möllendorf and Christiane Möllendorf-Niehuus.
Date: 2007-10-11
49. There is nothing in the wording of Article 2(3) of Regulation No 881/2002 to support the inference, argued for by the sellers, that that provision does not cover the obtaining of economic resources in the particular context of the case before the referring court, namely a transaction in which there is an economic balance between the consideration given and the consideration received.
50. On the contrary, the prohibition laid down in Article 2(3) of Regulation No 881/2002 is framed in particularly broad terms, as evidenced by the use of the words ‘directly or indirectly’.
51. In addition, the expression ‘made available’ has a wide meaning: rather than denoting a specific legal category of act, it encompasses all the acts necessary under the applicable national law if a person is effectively to obtain full power of disposal in relation to the property concerned.
54. It is relevant to add that, for the purposes of interpreting Regulation No 881/2002, account must also be taken of the wording and purpose of Resolution 1390 (2002) which, according to Recital 4 in the preamble to Regulation No 881/2002, that regulation is designed to implement (see, to that effect, Case C‑84/95 Bosphorus  [1996] ECR I‑3953, paragraphs 13 and 14, and Case C‑371/03 Aulinger  [2006] ECR I‑2207, paragraph 30).
56. The broad and unambiguous terms of that provision confirm that Article 2(3) of Regulation No 881/2002 applies to any mode of making available an economic resource and therefore also to any act, such as that at issue in the main proceedings, which flows from the execution of a contract imposing mutual obligations and which has been agreed in exchange for payment of pecuniary consideration.
62. Article 9 of Regulation No 881/2002 must be understood as meaning that the measures laid down in that regulation, including the freezing of economic resources, preclude also the completion of acts which implement contracts concluded before the entry into force of that regulation, such as final registration of transfer of ownership in the Land Register.
63. As the Advocate General stated in point 78 of his Opinion, the application in that way of those measures, with immediate effect, is moreover consistent with the objective pursued by Regulation No 881/2002 – namely, immediately to prevent persons associated with Usama bin Laden, the Al-Qaida network or the Taliban from having at their disposal any financial or economic resources, in order to impede the financing of terrorist activities – which could not be achieved as effectively if those persons were allowed to complete transactions concluded before their inclusion in the list in Annex I to that regulation.
78. However, as regards the application of Regulation No 881/2002, it should also be pointed out that, in accordance with settled case-law, the requirements flowing from the protection of fundamental rights within the Community legal order are also binding on Member States when they implement Community rules, and that consequently they are bound, as far as possible, to apply the rules in accordance with those requirements (see, inter alia, Joined Cases C‑20/00 and C‑64/00, Booker Aquaculture and Hydro Seafood  [2003] ECR I‑7411, paragraph 88 and case-law cited there).