A and Others v Minister van Buitenlandse Zaken.
Date: 2017-03-14
63


In the light of those circumstances, the Court held that it follows from the requirements of legal certainty that it is not possible for a recipient of aid, who could have contested the Commission’s decision relating to that aid and who has allowed the mandatory time limit laid down in that regard by the provisions of the Treaty to expire, to call in question the lawfulness of that decision before the national courts in an action brought against the measures taken by the national authorities to implement that decision (see, to that effect, judgment of 9 March 1994, TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraphs 12 and 17).
66


As the Court has emphasised on several occasions, to accept that a person who would unquestionably have had standing to bring proceedings under the fourth paragraph of Article 263 TFEU for the annulment of an act of the European Union could, after the expiry of the time limit for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU, contest the validity of that act before the national courts, would amount to enabling the person concerned to circumvent the fact that that act is final as against him once the time limit for his bringing an action has expired (see, to that effect, judgments of 9 March 1994, TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraph 18; of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraph 30; of 27 November 2012, Pringle, C‑370/12, EU:C:2012:756, paragraph 41; and of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraph 28).
67


However, it is only in circumstances where the action for annulment would unquestionably have been admissible that the Court has held that a person may not plead the invalidity of an act of the European Union before a national court (see, to that effect, judgments of 9 March 1994, TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraphs 17 to 25; of 30 January 1997, Wiljo, C‑178/95, EU:C:1997:46, paragraphs 15 to 25; of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraphs 29 to 40; and of 22 October 2002, National Farmers’ Union, C‑241/01, EU:C:2002:604, paragraphs 34 to 39). In numerous other cases, the Court has held that it was not established that the action would unquestionably have been admissible (see, inter alia, to that effect, judgments of 23 February 2006, Atzeni and Others, C‑346/03 and C‑529/03, EU:C:2006:130, paragraphs 30 to 34; of 8 March 2007, Roquette Frères, C‑441/05, EU:C:2007:150, paragraphs 35 to 48; of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraphs 37 to 52; of 18 September 2014, Valimar, C‑374/12, EU:C:2014:2231, paragraphs 24 to 38; and of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraphs 27 to 32).
69


However, that broadening of the conditions of admissibility of an action for annulment is not accompanied by any corresponding bar to calling in question, before a national court, the validity of an act of the European Union, where an action for annulment brought before the General Court by one of the parties to the dispute would not unquestionably have been admissible (see, to that effect, judgment of 9 June 2011, Comitato Venezia vuole vivere and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraph 57).
70


It follows that a request for a preliminary ruling concerning the validity of an act of the European Union can be dismissed only in the event that, although the action for annulment of an act of the European Union would unquestionably have been admissible, the natural or legal person capable of bringing such an action abstained from doing so within the prescribed period and is pleading the unlawfulness of that act in national proceedings in order to encourage the national court to submit a request for a preliminary ruling to the Court of Justice concerning the validity of that act, thereby circumventing the fact that that act is final as against him once the time limit for his bringing an action has expired (see, to that effect, judgments of 9 March 1994, TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraph 18, and of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraph 30).
73


Next, it is not obvious that they were ‘individually’ concerned by those acts for the purposes of the fourth paragraph of Article 263 TFEU. Indeed, the inclusion of the LTTE on the list of those whose funds are to be frozen is of general application with regard to persons other than that entity, in that it serves to impose on an indeterminate number of persons an obligation to comply with specific restrictive measures against that entity (see, to that effect, judgments of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraphs 241 to 244; of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraph 51; and of 23 April 2013, Gbagbo and Others v Council, C‑478/11 P to C‑482/11 P, EU:C:2013:258, paragraph 56).
79


According to the case-law of the Court, a regulation providing for restrictive measures, such as Implementing Regulation No 610/2010 and the acts of the European Union preceding that implementing regulation and relating to the inclusion of the LTTE on the list of those whose funds are to be frozen, must be interpreted in the light not only of the decision adopted in the framework of the Common Foreign and Security Policy referred to in Article 215(2) TFEU, but also of the historical context in which the provisions were adopted by the European Union, that regulation being one such provision (judgment of 1 March 2016, National Iranian Oil Company v Council, C‑440/14 P, EU:C:2016:128, paragraph 78 and the case-law cited).
91


In those circumstances, the fact, even supposing that it were to be established, that some of the activities referred to in paragraph 86 above are not prohibited by international humanitarian law could not be decisive in any event, inasmuch as the application of Common Position 2001/931 and Regulation No 2580/2001 does not depend on classifications stemming from international humanitarian law (see, by analogy, judgment of 30 January 2014, Diakité, C‑285/12, EU:C:2014:39, paragraphs 24 to 26).