Stichting Al-Aqsa v Council of the European Union and Kingdom of the Netherlands v Stichting Al-Aqsa.
Date: 2012-11-15
43. Under Article 113(1) of the Rules of Procedure of the Court of Justice, applicable at the time the appeal was brought, an appeal must seek to set aside, in whole or in part, the decision of the General Court.
44. However, in the present case, the appellant’s appeal seeks not to have the judgment under appeal set aside, even in part, that is to say the operative part thereof (see, to that effect, Case C‑263/09 P Edwin  v OHIM [2011] ECR I‑5853, paragraphs 83 to 85, and the judgment of 21 December 2011 in Case C‑329/09 P Iride  v Commission , paragraph 48), but merely the amendment of some of the grounds of that judgment, as the appellant itself acknowledges in its appeal.
45. As regards the application for the annulment of the contested acts, the appellant was successful at first instance, on the basis of its third plea, and is seeking only to substitute the grounds relating to two parts of the first plea which were rejected by the General Court.
49. The force of res judicata  extends only to the grounds of a judgment which constitute the necessary support of its operative part and are, therefore, inseparable from it (see Case C‑310/97 P Commission  v AssiDomän Kraft Products and Others [1999] ECR I‑5363, paragraph 54; Joined Cases C‑442/03 P and C‑471/03 P P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya  v Commission  [2006] ECR I‑4845, paragraphs 44 and 47; and the judgment of 19 April 2012 in Case C‑221/10 P Artegodan  v Commission , paragraph 87). In the present case, only the grounds relating to the third plea at first instance and considered to be founded by the General Court are inseparable from the annulment of the contested acts declared in point 1 of the operative part of the judgment under appeal.
50. It is apparent from the foregoing that the appellant’s appeal must be dismissed as inadmissible.
B – The appeal of the Kingdom of the Netherlands (C‑550/10 P)
1. Arguments of the parties
53. That order satisfies, in itself, the precise criteria set out by the General Court (Case T‑341/07 Sison  v Council [2009] ECR II‑3625, paragraph 111), pursuant to which a decision must form part of national proceedings seeking, directly and chiefly, the imposition on the person concerned of measures of a preventive or punitive nature, in connection with the combating of terrorism and by reason of that person’s involvement in terrorism. The decision of the court hearing the application for interim measures regarding the appellant’s involvement in the financing of terrorism constitutes the main part of its order, which, moreover, was delivered in the context of a national procedure seeking to impose preventive measures on the appellant with a view to combating terrorism.
63. To that end, it is necessary to interpret Article 1(4) and (6) of Common Position 2001/931, to which Article 2(3) of Regulation No 2580/2001 refers, by taking account not only of its wording, but also of the context in which it occurs and the objectives pursued by the rules of which it forms part (see, inter alia, Case C‑156/98 Germany  v Commission  [2000] ECR I‑6857, paragraph 50; Case C‑162/09 Lassal [2010] ECR I‑9217, paragraph 49; and Joined Cases C‑509/09 and C‑161/10 eDate Advertising and Martinez [2011] ECR I‑10269, paragraph 54). Moreover, the particular circumstances of the present case need to be taken into account.
a) Interpretation of Article 1(4) of Common Position 2001/931
67. Next, as regards the essential aim and purpose of Regulation No 2580/2001 and Common Position 2001/931, it is apparent from the recitals in the preambles thereto that they seek to combat international terrorism, cutting it off from its finan cial resources by freezing the economic funds and resources of persons or entities suspected of involvement in activities linked to terrorism (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 169 and 222, relating to specific restrictive measures against certain persons and entities related to Usama bin Laden, the Al-Qaeda network and the Taliban). Thus, those acts do not seek to accompany or support national criminal law procedures, but to prevent new terrorist acts from being committed.
68. Moreover, it is apparent from the references to a national decision, ‘precise information’ and ‘serious and credible evidence or clues’ that Article 1(4) of Common Position 2001/931 aims to protect the persons concerned by ensuring that they are included on the list at issue only on a sufficiently solid factual basis, and that the Common Position seeks to attain that objective by requiring a decision taken by a national authority.
69. In the absence of means on the part of the European Union to carry out its own investigations regarding the involvement of a given person in terrorist acts, that requirement aims to establish that evidence or serious and credible clues exist of the involvement of the person concerned in terrorist activities, regarded as reliable by the national authorities and having led them, at the very least, to adopt measures of inquiry, without requiring the national decision to have been taken in a specific legal form or to have been published or notified.
79. With a view to assessing the possible consequences of repealing the Sanctieregeling for the decisions which the Council has been required to take in accordance with that provision, the Court of Justice notes that the wording of Article 1(4) of Common Position 2001/931 refers to the decision taken by a national authority by requiring that precise information or evidence in the file exists which shows that such a decision has been taken.
81. Moreover, account should be taken of the purpose of the reference to a national decision, as noted in paragraph 68 above, which seeks to ensure that the decision of the Council be taken on a sufficient factual basis enabling the latter to conclude that there is a danger that, if preventive measures are not taken, the person concerned may continue to be involved in terrorist activities.
82. Accordingly, the essential question when reviewing whether to continue to include a person on the list at issue is whether, since that person was included in that list or since the last review, the factual situation has changed in such a way that it is no longer possible to draw the same conclusion in relation to the involvement of the person at issue in terrorist activities.
86. Indeed, the Court of Justice has ruled that the direct applicability of a regulation precludes, unless otherwise provided, the Member States from taking steps which are intended to alter the scope of the regulation itself (see, to that effect, Case 40/69 Bollmann  [1970] ECR 69, paragraph 4, and Case 74/69 Waren-Import-Gesellschaft Krohn  [1970] ECR 451, paragraphs 4 and 6).
87. Moreover, the Court of Justice has held that, by virtue of the obligations arising from the FEU Treaty and assumed on ratification, Member Sates are under a duty not to obstruct the direct applicability inherent in regulations, given that the scrupulous observation of this duty is an indispensable requisite for the simultaneous and uniform application of European Union regulations throughout the Union (see, to that effect, Case 34/73 Variola [1973] ECR 981, paragraph 10; Case 94/77 Zerbone [1978] ECR 99, paragraphs 24 and 25; and Case 272/83 Commission  v Italy  [1985] ECR 1057, paragraph 26). In particular, Member States must not adopt a measure by which the Community nature of a legal rule and the consequences which arise from it are concealed from the persons concerned (see Variola , paragraph 11; Zerbone , paragraph 26; Case C‑113/02 Commission  v Netherlands  [2004] ECR I‑9707, paragraph 16; and Case C‑316/10 Danske Svineproducenter [2011] ECR I‑13721, paragraph 41).
94. However, under Article 117(2) of the Rules of Procedure, for a submission to be regarded as a cross-appeal, the party which relies on it must seek to set aside, in whole or in part, the judgment under appeal on a plea in law which was not raised in the appeal (see Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala  [2008] ECR I‑4951, paragraph 186), irrespective of the name given to it.
104. As regards the Council’s assertion in its defence before the General Court that the contested acts were based solely on the order of the court hearing the application for interim measures, the Court of Justice recalls the function of the reference to a national decision, made by Article 1(4) of Common Position 2001/931, of establishing the existence of evidence or serious and credible clues as to the involvement of the person concerned in terrorist activities, regarded as reliable by the national authorities. In addition, the statement of reasons which was communicated to the appellant on two occasions, by letters of 23 April and 29 June 2007, refers to the Sanctieregeling. Accordingly, that assertion of the Council constitutes only an argument raised in support of its claims which are not binding on the Court of Justice when evaluating the legality of the contested acts (see, by analogy, Joined Cases C‑514/07 P, C‑528/07 P and C‑532/07 P Sweden and Others  v API and Commission  [2010] ECR I‑8533, paragraph 65).
120. The freezing measure imposed by the contested acts constitutes a temporary precautionary measure which is not supposed to deprive the persons concerned of their property (see Kadi and Al Barakaat International Foundation  v Council and Commission , paragraph 358). It does, however, undeniably entail a restriction of the exercise of the appellant’s right to property that must, moreover, be classified as considerable, having regard to the general application of the freezing measure and the fact that it was imposed on it for the first time by a decision of 27 June 2003.
121. According to settled case‑law, the right to property under European Union law does not enjoy absolute protection. Consequently, the exercise of the right to property may be restricted, provided that those restrictions in fact correspond to objectives of public interest pursued by the European Union and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the right so guaranteed (see Case C‑84/95 Bosphorus  [1996] ECR I‑3953, paragraph 21; Kadi and Al Barakaat International Foundation  v Council and Commission , paragraph 355; and Case C‑548/09 P Bank Melli Iran  v Council [2011] ECR I‑11381, paragraphs 89, 113 and 114).
122. Moreover, according to settled case‑law, the principle of proportionality is one of the general principles of European Union law and requires that measures implemented through provisions of European Union law be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what is necessary to achieve them (see, inter alia, Case C‑176/09 Luxembourg  v Parliament and Council [2011] ECR I‑3727, paragraph 61 and the judgment of 13 March 2012 in Case C‑380/09 P Melli Bank  v Council , paragraph 52 and the case‑law cited).
126. In addition, a partial freeze limited to assets related to the financing of terrorism is not provided for in either Common Position 2001/931 or Regulation No 2580/2001. The same is true of Resolution 1373 (2001) of the United Nations Security Council, Paragraph 1(c) of which provides, in a general manner, that States are to freeze funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts. Account must be taken of the wording and purpose of that resolution when interpreting provisions of European Union law which seek to implement that resolution (see, to that effect, inter alia, Case C‑550/09 E and F  [2010] ECR I‑6213, paragraph 72; Bank Melli Iran  v Council , paragraph 104; and Melli Bank  v Council , paragraph 55).
127. As regards the alleged disproportionate nature of the maintenance of the appellant on the list at issue by the contested acts, the Court of Justice points out that Articles 5 and 6 of Regulation No 2580/2001 provide for the possibility, first, to authorise the use of frozen funds to meet essential needs or to satisfy certain commitments and, second, to grant specific authorisation to unfreeze funds, other financial assets or other economic resources (see, by analogy, Kadi and Al Barakaat International Foundation  v Council and Commission , paragraph 364).
129. Finally, the maintenance of the appellant on the list at issue by the contested acts cannot be qualified as disproportionate for being allegedly potentially unlimited, since such lists are subject to periodic review so as to ensure that the persons who, and entities which, no longer meet the necessary criteria are removed from the list at issue (see, by analogy, Kadi and Al Barakaat International Foundation  v Council and Commission , paragraph 365).
130. It follows that, given the primordial importance of combating terrorism with a view to maintaining international peace and security, the restrictions on the appellant’s right to property brought about by the contested acts are not disproportionate to the aims pursued.
138. According to settled case‑law, the statement of reasons required by Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review (see, inter alia, Case C‑367/95 P Commission  v Sytraval and Brink’s France  [1998] ECR I‑1719, paragraph 63; Bertelsmann and Sony Corporation of America  v Impala , paragraph 166; and E and F , paragraph 54).
139. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see, inter alia, Commission  v Sytraval and Brink’s France , paragraph 63; Bertelsmann and Sony Corporation of America  v Impala , paragraph 166; and Melli Bank  v Council , paragraph 93).
140. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, inter alia, Commission v Sytraval and Brink’s France , paragraph 63; Case C-42/01 Portugal  v Commission  [2004] ECR I‑6079, paragraph 66; and Bertelsmann and Sony Corporation of America v Impala , paragraph 166).
141. First of all, it is apparent from that case‑law that Article 253 EC cannot be interpreted as requiring that the Council provide a detailed answer to the observations made by the appellant at its consultation prior to the adoption of the decision at issue (see, by analogy, Joined Cases 3/58 to 18/58, 25/58 and 26/58 Erzbergbau and Others  v High Authority  [1960] ECR 173, 197, and Joined Cases 142/84 and 156/84 British American Tobacco and Reynolds Industries  v Commission  [1987] ECR 4487, paragraphs 72 and 73).
142. Moreover, the statement of reasons notified to the appellant, together with Decision 2007/445, sets out the individual and specific reasons which led the Council to consider, in accordance with Article 1(4) of Common Position 2001/931 on the basis of information considered to be reliable by a national authority, that the appellant was involved in the financing of terrorism. Such elements were sufficient to enable the appellant to understand the accusations made against it.