Abdulbasit Abdulrahim v Council of the European Union and European Commission.
Date: 2013-05-28
38. However, as the Council and the Commission have correctly pointed out, the General Court’s obligation to hear the Advocate General before giving a decision on an action must be read in the light of Articles 2(2), 18 and 19 of its Rules of Procedure, from which it is apparent, first, that the designation of a Judge of the General Court as Advocate General is optional where the General Court sits as a Chamber and, second, that references to the Advocate General in those Rules of Procedure are to apply only where a Judge has in fact been designated as Advocate General (order of 25 June 2009 in Case C‑580/08 P Srinivasan  v Ombudsman , paragraph 35; order of 22 October 2010 in Case C‑266/10 P Seacid  v Parliament and Council , paragraph 11; and Case C‑426/10 P Bell & Ross  v OHIM  [2011] ECR I‑0000, paragraph 28).
42. 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, and Case C‑417/04 P Regione Siciliana  [2006] ECR I‑3881, paragraph 37).
61. In paragraph 22 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, and 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).
62. In various circumstances the Court of Justice has acknowledged that an applicant’s interest in bringing proceedings does not necessarily disappear because the act challenged by him has ceased to have effect in the course of proceedings.
63. 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; and Wunenburger  v Commission , paragraph 50).
64. 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).
65. It is apparent from that case-law that the question whether an applicant retains his interest in bringing proceedings must be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained.
67. In paragraphs 28 and 31 of the order under appeal, the General Court held that, inasmuch as Regulation No 36/2011 deleted the entry relating to Mr Abdulrahim’s name from the list at issue, its adoption gave him full satisfaction, so that his action for annulment was no longer liable to procure an advantage for him and, consequently, his interest in bringing proceedings had disappeared.
68. It is true that, in paragraph 32 of the order under appeal, the General Court correctly recalled the distinction between the repeal of an act of an institution of the European Union, which does not amount to recognition of its illegality and takes effect ex nunc , and a judgment annulling an act, by virtue of which the act annulled is removed retroactively from the legal order and is deemed never to have existed.
69. However, the General Court wrongly concluded, in the final sentence of paragraph 32 of the order under appeal, that that difference would not be able to substantiate an interest on the part of Mr Abdulrahim in securing the annulment of Regulation No 1330/2008.
70. 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, 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, 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.
71. As the Advocate General has observed in points 61 to 67 of his Opinion, the interest of an applicant such as Mr Abdulrahim in bringing proceedings is retained, despite the removal of his name from the list at issue, for the purpose of having the Courts of the European Union recognise that he should never have been included on the list or that he should not have been included under the procedure which was adopted by the European Union institutions.
72. 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 Abdulrahim 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, and Case C‑343/87 Culin  v Commission  [1990] ECR I‑225, paragraph 26 and the case-law cited).
73. Therefore the General Court, in paragraphs 28 and 31 of the order under appeal, incorrectly inferred from the removal by Regulation No 36/2011 of Mr Abdulrahim’s name from the list at issue that he had obtained full satisfaction and that his action for annulment was accordingly no longer such as to procure for him an advantage.
74. Contrary to the submissions of the Council and the Commission, it is unimportant that the pleas for annulment relied upon in the judicial proceedings relate to the statement of reasons for the act in question or to compliance with an applicant’s procedural rights. Annulment on such grounds of a decision freezing funds would be liable to give the applicant satisfaction in that it gives rise to serious doubts as to the way in which the body concerned exercised its powers in his regard.
75. In any event, before the General Court Mr Abdulrahim did not solely rely on pleas alleging infringement of rights of the defence, but he also disputed that he had been associated with Al-Qaida. As is apparent from paragraphs 142 to 150 of the application before the General Court, Mr Abdulrahim denied that he was involved in terrorist activities or associated with Al-Qaida and contended that he had been included on the list at issue simply because he formed part of a community of Libyan refugees some of whom, according to the United Kingdom authorities, were involved in terrorist activities.
76. It is also unimportant that a judgment ordering annulment cannot refer to the period before Regulation No 1330/2008 was adopted. Although, as the General Court pointed out in paragraph 52 of the order under appeal, Mr Abdulrahim was already included on the Sanctions Committee list and was already the subject of restrictive measures taken by the United Kingdom authorities before that regulation was adopted, the fact remains that including him on the list at issue could have increased the opprobrium and suspicion in his regard and, consequently, the non-material harm which he claims to have suffered.
77. It should be added that the lists established by directly applicable European Union regulations are not of the same nature and do not have the same legal effect, in the territory of the European Union, as the Sanctions Committee list.
78. In paragraph 34 of the order under appeal, the General Court held that recognition of the alleged illegality is not sufficient to establish a continuing interest in bringing proceedings under Articles 263 TFEU and 264 TFEU for the annulment of acts of the institutions because, were the position otherwise, an applicant would continue to retain an interest in seeking the annulment of an act, notwithstanding its withdrawal or repeal, and that would be incompatible with the case-law referred to in paragraphs 24 and 29 of the order under appeal and recalled in paragraphs 16 and 18 of the present judgment.
79. 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 ; and Culin  v Commission , paragraphs 27 to 29).
80. 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; and Culin  v Commission , paragraph 26).
81. It follows from the foregoing that the General Court’s conclusion set out in paragraph 34 of the order under appeal is vitiated by an error of law.
82. Also, the General Court erred in law by concluding, in paragraphs 35 and 36 of the order under appeal, that Mr Abdulrahim lacks an interest in bringing proceedings, inter alia, because the restrictive measures adopted in his regard by Regulation No 1330/2008 were not maintained and the abolition of those measures by Regulation No 36/2011 is definitive, contrary to the situation covered in PKK  v Council , a judgment relied upon by Mr Abdulrahim in support of his line of argument. The definitive repeal of Regulation No 1330/2008, by the removal of Mr Abdulrahim’s name from the list at issue, does not prevent an interest in bringing proceedings from continuing to exist so far as concerns the effects of Regulation No 1330/2008 between the date of its entry into force and that of its repeal.
83. In any event, in the light of the circumstances of the present case and, in particular, the extent of the damage to Mr Abdulrahim’s reputation resulting from his inclusion on the list at issue, his interest in bringing proceedings continues to exist for the purpose of seeking annulment of Regulation No 1330/2008 in so far as it concerns him and of securing, should his action be upheld, his rehabilitation and, thus, some form of reparation for the non-material harm suffered by him.
84. It follows from all the foregoing that the General Court erred in law in holding that Mr Abdulrahim lacked an interest in bringing proceedings and that, accordingly, there was no longer any need to adjudicate on his action for annulment of Regulation No 1330/2008 in so far as it concerns him.