French Republic v People's Mojahedin Organization of Iran.
Date: 2011-12-21
43. The Court has consistently held that for an appellant to have an interest in bringing proceedings the appeal must be capable, if successful, of procuring an advantage to the party bringing it (see, in particular, Case C‑535/06 P Moser Baer India  v Council  [2009] ECR I‑7051, paragraph 24 and case-law cited).
45. In addition, it follows from the third paragraph of that article that the Member States, whether or not they were parties to the case at first instance, do not have to show interest in order to bring an appeal against a judgment of the General Court (Case C‑49/92 P Commission  v Anic Partecipazioni [1999] ECR I‑4125, paragraph 171).
48. Nor, secondly, does it appear that, as a consequence of the adoption of Decision 2009/62, the dispute between the parties has been brought to and end and that the appeal has therefore become devoid of purpose for that reason (see, by analogy, the order of 1 December 2004 in Case C‑498/01 P OHIM  v Zapf Creation  [2004] ECR I‑11349, paragraph 12).
61. It is to be borne in mind that, in the case of an initial decision to freeze funds, the Council is not obliged to inform the person or entity concerned beforehand of the grounds on which that institution intends to rely in order to include that person or entity’s name in the list referred to in Article 2(3) of Regulation No 2580/2001. So that its effectiveness may not be jeopardised, such a measure must be able to take advantage of a surprise effect and to apply immediately. In such a case, it is as a rule enough if the institution notifies the person or entity concerned of the grounds and affords it the right to be heard at the same time as, or immediately after, the decision is adopted.
62. In contrast, in the case of a subsequent decision to freeze funds by which the inclusion of the name of a person or entity already appearing in the list referred to in Article 2(3) of Regulation No 2580/2001 is maintained, that surprise effect is no longer necessary in order to ensure that the measure is effective, with the result that the adoption of such a decision must, in principle, be preceded by notification of the incriminating evidence and by allowing the person or entity concerned an opportunity of being heard.
63. In the judgment under appeal, the General Court applied those principles to the facts of the case and rightly concluded that, given that the PMOI’s name had been maintained, by the contested decision, in the list referred to in Article 2(3) of Regulation No 2580/2001, a list in which it had appeared ever since its original inclusion on 3 May 2002 pursuant to Decision 2002/334, the Council might not, as it did in that case, communicate the new incriminating evidence against the PMOI at the same time as it adopted the contested decision. The Council was bound, imperatively, to ensure that the PMOI’s rights of defence were observed, that is to say, notification of the incriminating evidence against it and the right to be heard, before that decision was adopted.
64. In this regard, it is to be stressed, as the Advocate General did in point 103 of her Opinion, that the element of protection afforded by the requirement of notification of incriminating evidence and the right to make representations before the adoption of a measure, such as the contested decision, that sets in motion the application of restrictive measures is fundamental and essential to the rights of defence. This is all the more the case because such measures have a considerable effect on the rights and freedoms of the persons and groups concerned.
65. The purpose of the rule that the addressee of a decision affecting him adversely must be placed in a position to submit his observations before that decision is adopted is to enable the authority concerned effectively to take into account all relevant information. In order to ensure that the addressee is in fact protected, the object of that rule is, in particular, to enable him to correct an error or produce such information relating to his personal circumstances as will tell in favour of the decision’s being adopted or not, or of its having this content or that (see, to this effect, Case C‑349/07 Sopropé [2008] ECR I‑10369, paragraph 49).
66. That right, fundamental to observance of the rights of defence during a procedure preceding the adoption of a restrictive measure such as the contested decision, is moreover expressly affirmed in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, recognised by Article 6(1) TEU as having the same legal value as the Treaties.
67. If, as has been noted at paragraph 61 above, an exception to that fundamental right has been allowed with regard to initial decisions to freeze funds, that is justified by the need to ensure that the freezing measures are effective and, in short, by overriding considerations to do with safety or the conduct of the international relations of the Union and of its Member States (see, to this effect, Kadi and Al Barakaat International Foundation  v Council and Commission , paragraph 342).
74. In fact, that latter decision remained in force by reason of the presumption that acts of the institutions of the European Union are lawful, which, according to the Court’s settled case-law, means that those acts produce legal effects until such time as they are withdrawn, annulled in an action for annulment or declared invalid following a reference for a preliminary ruling or a plea of illegality (see, inter alia, Case C‑199/06 CELF and Ministre de la Culture et de la Communication [2008] ECR I-469, paragraph 60 and case-law cited).
79. According to settled case-law, the Court of Justice will reject outright complaints directed against grounds of a judgment of the General Court included purely for the sake of completeness, since they cannot lead to the judgment’s being set aside and are therefore ineffective (see, inter alia, Case C‑399/08 P C ommission  v Deutsche Post  [2010] ECR I‑0000, paragraph 75, and Case C‑96/09 P Anheuser-Busch  v Budějovický Budvar  [2011] ECR I‑0000, paragraph 211 and case-law cited).