European Commission and Others v Yassin Abdullah Kadi.
Date: 2013-07-18
56. In that regard, it must be recalled that, first, the Court may, of its own motion, on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure, in accordance with Article 83 of the Rules of Procedure, if it considers that it lacks sufficient information or that the case should be decided on the basis of an argument which has not been debated between the parties (see judgment of 11 April 2013 in Case C‑535/11 Novartis Pharma  [2013] ECR I-0000, paragraph 30 and case-law cited).
57. Secondly, pursuant to the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (see judgment of 22 November 2012 in Case C‑89/11 P E.ON Energie  v Commission [2012] ECR I‑0000, paragraph 62 and case-law cited).
65. In paragraph 126 of the judgment under appeal, the General Court held that, in accordance with paragraphs 326 and 327 of the Kadi judgment, the contested regulation could not be afforded any immunity from jurisdiction on the ground that its objective is to implement resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations.
66. Various factors, set out in paragraphs 291 to 327 of the Kadi judgment, were advanced in support of the position stated by the Court in that judgment, and there has been no change in those factors which could justify reconsideration of that position, those factors being, essentially, bound up with the constitutional guarantee which is exercised, in a Union based on the rule of law (see Case C‑550/09 E and F [2010] ECR I‑6213, paragraph 44, and the judgment of 26 June 2012 in Case C‑335/09 P Poland  v Commission [2012] ECR I‑0000, paragraph 48), by judicial review of the lawfulness of all European Union measures, including those which, as in the present case, implement an international law measure, in the light of the fundamental rights guaranteed by the European Union.
67. That European Union measures implementing restrictive measures decided at international level enjoy no immunity from jurisdiction has moreover been confirmed in Joined Cases C‑399/06 P and C‑403/06 P Hassan and Ayadi  v Council and Commission [2009] ECR I‑11393, paragraphs 69 to 75, and, more recently, in the judgment of 16 November 2011 in Case C‑548/09 P Bank Melli Iran  v Council [2011] ECR I‑0000, where it is stated, in paragraph 105, with reference to the Kadi  judgment, that, without the primacy of a Security Council resolution at the international level thereby being called into question, the requirement that the European Union institutions should pay due regard to the institutions of the United Nations must not result in there being no review of the lawfulness of such European Union measures, in the light of the fundamental rights which are an integral part of the general principles of European Union law.
97. As stated by the General Court in paragraphs 125, 126 and 171 of the judgment under appeal, the Court held, in paragraph 326 of the Kadi  judgment, that the Courts of the European Union must, in accordance with the powers conferred on them by the Treaties, ensure the review, in principle the full review, of the lawfulness of all Union acts in the light of the fundamental rights forming an integral part of the European Union legal order, including review of such measures as are designed to give effect to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations (see also, to that effect, Hassan and Ayadi  v Council and Commission , paragraph 71, and Bank Melli Iran  v Council , paragraph 105). That obligation is expressly laid down by the second paragraph of Article 275 TFEU.
98. Those fundamental rights include, inter alia, respect for the rights of the defence and the right to effective judicial protection.
99. The first of those rights, which is affirmed in Article 41(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’) (see, to that effect, the judgment of 21 December 2011 in Case C‑27/09 P France  v People’s Mojahedin Organization of Iran [2011] ECR I‑0000, paragraph 66), includes the right to be heard and the right to have access to the file, subject to legitimate interests in maintaining confidentiality.
100. The second of those fundamental rights, which is affirmed in Article 47 of the Charter, requires that the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based, either by reading the decision itself or by requesting and obtaining disclosure of those reasons, without prejudice to the power of the court having jurisdiction to require the authority concerned to disclose that information, so as to make it possible for him to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his applying to the court having jurisdiction, and in order to put the latter fully in a position to review the lawfulness of the decision in question (see the judgment of 4 June 2013 in Case C‑300/11 ZZ [2013] ECR I‑0000, paragraph 53 and case-law cited).
102. Further, the question whether there is an infringement of the rights of the defence and of the right to effective judicial protection must be examined in relation to the specific circumstances of each particular case (see, to that effect, Case C‑110/10 P Solvay  v Commission [2011] ECR I‑0000, paragraph 63), including, the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question (see, to that effect, as regards compliance with the duty to state reasons, the judgments of 15 November 2012 in Joined Cases C‑539/10 P and C‑550/10 P Al-Aqsa  v Council and Netherlands  v Al-Aqsa [2012] ECR I‑0000, paragraphs 139 and 140, and in Case C‑417/11 P Council  v Bamba [2012] ECR I‑0000, paragraph 53).
104. In that regard, as the Court has previously stated, specifically in paragraph 294 of the Kadi  judgment, it must be emphasised that, in accordance with Article 24 of the Charter of the United Nations, the Security Council has been invested by the members of the UN with the primary responsibility for the maintenance of international peace and security. To that end, it is the task of the Security Council to determine what constitutes a threat to international peace and security and to take the measures necessary, by means of the adoption of resolutions under Chapter VII of that Charter, to maintain or restore international peace and security, in accordance with the purposes and principles of the United Nations, including respect for human rights.
106. When the European Union implements Security Council resolutions adopted under Chapter VII of the Charter of the United Nations, on the basis of a Common Position or a joint action adopted by the Member States pursuant to the provisions of the EU Treaty relating to the common foreign and security policy, the competent European Union authority must take due account of the terms and objectives of the resolution concerned and of the relevant obligations under that Charter relating to such implementation (see the Kadi  judgment, paragraphs 295 and 296).
111. In proceedings relating to the adoption of the decision to list or mai ntain the listing of the name of an individual in Annex I to Regulation No 881/2002, respect for the rights of the defence and the right to effective judicial protection requires that the competent Union authority disclose to the individual concerned the evidence against that person available to that authority and relied on as the basis of its decision, that is to say, at the very least, the summary of reasons provided by the Sanctions Committee (see, to that effect, the Kadi  judgment, paragraphs 336 and 337), so that that individual is in a position to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in bringing an action before the Courts of the European Union.
112. When that disclosure takes place, the competent Union authority must ensure that that individual is placed in a position in which he may effectively make known his views on the grounds advanced against him (see, to that effect, Case C‑32/95 P Commission  v Lisrestal and Others [1996] ECR I‑5373, paragraph 21; Case C‑462/98 P Mediocurso  v Commission [2000] ECR I‑7183, paragraph 36, and the judgment of 22 November 2012 in Case C‑277/11 M . [2012] ECR I‑0000, paragraph 87 and case-law cited).
113. As regards a decision whereby, as in this case, the name of the individual concerned is to be maintained on the list in Annex I to Regulation No 881/2002, compliance with that dual procedural obligation must, contrary to the position in respect of an initial listing (see, in that regard, the Kadi  judgment, paragraphs 336 to 341 and 345 to 349, and France  v People’s Mojahedin Organization of Iran , paragraph 61), precede the adoption of that decision (see France  v People’s Mojahedin Organization of Iran , paragraph 62). It is not disputed that, in the present case, the Commission, the author of the contested regulation, complied with that obligation.
114. When comments are made by the individual concerned on the summary of reasons, the competent European Union authority is under an obligation to examine, carefully and impartially, whether the alleged reasons are well founded, in the light of those comments and any exculpatory evidence provided with those comments (see, by analogy, Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14; Case C-525/04 P Spain  v Lenzing [2007] ECR I‑9947, paragraph 58, and M ., paragraph 88).
116. Lastly, without going so far as to require a detailed response to the comments made by the individual concerned (see, to that effect, Al‑Aqsa  v Council and Netherlands  v Al-Aqsa , paragraph 141), the obligation to state reasons laid down in Article 296 TFEU entails in all circum s tances, not least when the reasons stated for the European Union measure represent reasons stated by an international body, that that statement of reasons identifies the individual, specific and concrete reasons why the competent authorities consider that the individual concerned must be subject to restrictive measures (see, to that effect, Al-Aqsa  v Council  and Netherlands  v Al‑Aqsa , paragraphs 140 and 142, and Council  v Bamba , paragraphs 49 to 53).
117. As regards court proceedings, in the event that the person concerned challenges the lawfulness of the decision to list or maintain the listing of his name in Annex I to Regulation No 881/2002, the review by the Courts of the European Union must extend to whether rules as to procedure and rules as to competence, including whether or not the legal basis is adequate, are observed (see, to that effect, the Kadi  judgment, paragraphs 121 to 236; see also, by analogy, the judgment of 13 March 2012 in Case C‑376/10 P Tay Za  v Council [2012] ECR I‑0000, paragraphs 46 to 72).
118. The Courts of the European Union must, further, determine whether the competent European Union authority has complied with the procedural safeguards set out in paragraphs 111 to 114 of this judgment and the obligation to state reasons laid down in Article 296 TFEU, as mentioned in paragraph 116 of this judgment, and, in particular, whether the reasons relied on are sufficiently detailed and specific.
119. The effectiveness of the judicial review guaranteed by Article 47 of the Charter also requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to list or to maintain the listing of a given person in Annex I to Regulation No 881/2002 (the Kadi  judgment, paragraph 336), the Courts of the European Union are to ensure that that decision, which affects that person individually (see, to that effect, the judgment of 23 April 2013 in Joined Cases C‑478/11 P to C‑482/11 P Gbagbo and Others  v Council [2013] ECR I‑0000, paragraph 56), is taken on a sufficiently solid factual basis (see, to that effect, Al-Aqsa  v Council  and Netherlands  v Al-Aqsa , paragraph 68). That entails a verification of the allegations factored in the summary of reasons underpinning that decision (see to that effect, E and F , paragraph 57), with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated.
120. To that end, it is for the Courts of the European Union, in order to carry out that examination, to request the competent European Union authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination (see, by analogy, ZZ , paragraph 59).
121. That is because it is the task of the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded.
123. If the competent European Union authority finds itself unable to comply with the request by the Courts of the European Union, it is then the duty of those Courts to base their decision solely on the material which has been disclosed to them, namely, in this case, the indications contained in the narrative summary of reasons provided by the Sanctions Committee, the observations and exculpatory evidence that may have been produced by the person concerned and the response of the competent European Union authority to those observations. If that material is insufficient to allow a finding that a reason is well founded, the Courts of the European Union shall disregard that reason as a possible basis for the contested decision to list or maintain a listing.
124. If, on the other hand, the competent European Union authority provides relevant information or evidence, the Courts of the European Union must then determine whether the facts alleged are made out in the light of that information or evidence and assess the probative value of that information or evidence in the circumstances of the particular case and in the light of any observations submitted in relation to them by, among others, the person concerned.
131. Such a judicial review is indispensable to ensure a fair balance between the maintenance of international peace and security and the protection of the fundamental rights and freedoms of the person concerned (see, to that effect, E and F , paragraph 57), those being shared values of the UN and the European Union.
132. Notwithstanding their preventive nature, the restrictive measures at issue have, as regards those rights and freedoms, a substantial negative impact related, first, to the serious disruption of the working and family life of the person concerned due to the restrictions on the exercise of his right to property which stem from their general scope combined, as in this case, with the actual duration of their application, and, on the other, the public opprobrium and suspicion of that person which those measures provoke (see, to that effect, the Kadi  judgment, paragraphs 358, 369 and 375; France  v People’s Mojahedin Organization of Iran , paragraph 64; Al-Aqsa  v Council  and Netherlands  v Al-Aqsa , paragraph 120, and the judgment of 28 May 2013 in Case C‑239/12 P Abdulrahim  v Council and Commission [2013] ECR I‑0000, paragraph 70 and case-law cited).
134. The essence of effective judicial protection must be that it should enable the person concerned to obtain a declaration from a court, by means of a judgment ordering annulment whereby the contested measure is retroactively erased from the legal order and is deemed never to have existed, that the listing of his name, or the continued listing of his name, on the list concerned was vitiated by illegality, the recognition of which may re‑establish the reputation of that person or constitute for him a form of reparation for the non-material harm he has suffered (see, to that effect, Abdulrahim  v Council and Commission , paragraphs 67 to 84).
– The errors of law affecting the judgment under appeal
137. On the other hand, the fact that the competent European Union authority does not make accessible to the person concerned and, subsequently, to the Courts of the European Union information or evidence which is in the sole possession of the Sanctions Committee or the Member of the UN concerned and which relates to the summary of reasons underpinning the decision at issue, cannot, as such, justify a finding that those rights have been infringed. However, in such a situation, the Courts of the European Union, which are called upon to review whether the reasons contained in the summary provided by the Sanctions Committee are well founded in fact, taking into consideration any observations and exculpatory evidence produced by the person concerned and the response of the competent European Union authority to those observations, will not have available to it supplementary information or evidence. Consequently, if it is impossible for the Courts to find that those reasons are well founded, those reasons cannot be relied on as the basis for the contested listing decision.
140. Further, and bearing in mind that the assessment, by the General Court, of whether the statement of reasons is or is not sufficient is subject to review by the Court on an appeal (see, to that effect, Council v Bamba , paragraph 41 and case-law cited), the General Court erred in law by basing, as is apparent from paragraphs 174, 177, 188 and 192 to 194 of the judgment under appeal, its finding that there had been such an infringement on the fact that, in its opinion, the allegations made in the summary of reasons provided by the Sanctions Committee were vague and lacking in detail, even though such a general conclusion cannot be drawn if each of those reasons is examined separately.
150. Although it emerges from paragraphs 138 to 140 and 142 to 149 of this judgment that errors of law were made by the General Court, it is necessary to determine whether, notwithstanding those errors, the operative part of the judgment under appeal can be seen to be well founded on legal grounds other than those maintained by the General Court, in which event an appeal must be dismissed (see, to that effect, the judgment of 19 April 2012 in Case C‑221/10 P Artegodan  v Commission [2012] ECR I‑0000, paragraph 94 and case‑law cited).
– The unlawfulness of the contested regulation
156. In that regard, while it is conceivable that the material relied on in the summary of reasons provided by the Sanctions Committee as regards the recruitment by Mr Kadi, in 1992, of Mr Al-Ayadi on the recommendation of Mr Julaidan and the alleged involvement of Mr Al‑Ayadi and Mr Julaidan in terrorist activities in association with Usama bin Laden might have been deemed sufficient to justify the initial inclusion, in 2002, of Mr Kadi’s name in the list of persons in the annex to Regulation No 881/2002, it must be observed that that same material, not otherwise substantiated, cannot justify maintaining, after 2008, the listing of Mr Kadi’s name in that regulation, as amended by the contested regulation. Given how far apart in time those two measures are, that material, which refers to 1992, is no longer sufficient in itself to justify, in 2008, maintaining, at European Union level, the name of Mr Kadi in the list of persons and entities subject to the restrictive measures at issue.
164. In those circumstances, the errors of law, identified in paragraphs 138 to 140 and 142 to 149 of this judgment, which vitiate the judgment under appeal are not such as to affect the validity of that judgment, given that its operative part, which annuls the contested regulation in so far as it concerns Mr Kadi, is well founded on the legal grounds stated in the preceding paragraph.