Criminal proceedings against K.P.
Date: 2019-06-20
29


According to settled case-law, when a question on the validity of a measure adopted by the European Union institutions is raised before a national court, it is for that court to decide whether a decision on the matter is necessary to enable it to give judgment and, consequently, whether it should request the Court to rule on that question (see, to that effect, judgments of 8 July 2010, Afton Chemical, C‑343/09, EU:C:2010:419, paragraph 13, and of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 31).
30


In that regard it should be borne in mind that every party has the right to plead before the national court hearing the case the illegality of the provisions contained in legislative acts of the European Union which serve as the basis for a decision or act of national law relied upon against him, which may prompt that court, which does not have jurisdiction itself to make a finding of such illegality, to put that question to the Court by means of a reference for a preliminary ruling (see, to that effect, judgment of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraph 45).
31


The recognition of that right presupposes, however, that the party at issue had no right of direct action under Article 263 TFEU by which it could challenge provisions, the consequences of which it is suffering without having been able to seek their annulment (judgment of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraph 46).
33


K.P. was not personally placed on the list provided for in Article 2(3) of Regulation No 2580/2001, rather the LTTE was placed on that list as an organisation. Furthermore, as the Advocate General observed in point 30 of her Opinion, it is evident from the documents on the file before the Court that K.P. occupies a position of regional organiser for a Tamil coordination committee, part of a rigid hierarchy under the supervision of organisers for local districts and other national organisers for Germany. In the light of the position occupied by the person concerned in that hierarchy, there is no doubt that the power is not conferred on him to represent the LTTE in an action brought before the judicature of the European Union for the annulment of the acts at issue in the main proceedings. Likewise, he is clearly not regarded as being individually concerned by those acts for the purposes of Article 263(4) TFEU since he is not affected by those acts by reason of certain attributes which are peculiar to him or by reason of circumstances in which he is differentiated from any other person (see, to that effect, judgment of 18 January 2007, PKK and KNK v Council, C‑229/05 P, EU:C:2007:32, paragraphs 72 to 74).
35


It follows from the spirit of cooperation which must prevail in the operation of the preliminary reference procedure that the national court must set out in its order for reference the precise reasons why it considers that an answer to its questions concerning the interpretation or validity of certain provisions of EU law is necessary in order to determine the outcome of the case before it (judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 47).
36


It is therefore important that the national court should set out, in particular, the precise reasons which led it to question the validity of certain provisions of EU law and set out the grounds of invalidity which, consequently, appear to it capable of being upheld. That requirement is also stated in Article 94(c) of the Rules of Procedure of the Court of Justice (see, to that effect, judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 48 and the case-law cited).
37


The information contained in the order for reference serves not only to enable the Court to give helpful answers, but also to allow the governments of Member States and other interested parties to submit observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union. It is for the Court to ensure that that opportunity is safeguarded, given that, under Article 23, only the orders for reference are notified to the interested parties, accompanied by a translation in the official language of each Member State, but excluding any case file that may be sent to the Court by the national court (judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 49 and the case-law cited).
41


In his request for an oral hearing, K.P. nevertheless submitted that the Court should also examine, in the context of the present case, the validity of the Council decision initially including the LTTE on the list provided for in Article 2(3) of Regulation No 2580/2001, namely Decision 2006/379 in the present case. As is apparent from paragraph 51 of the judgment of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583), the retention of a person, group or entity on that list is in reality just an extension of the initial listing. In addition, the referring court expressly refers to the judgment of 29 June 2010, E and F (C‑550/09, EU:C:2010:382, paragraph 55), in which the Court annulled the inclusion of an entity on that list because of the fact that neither the decision including that entity on that same list nor the subsequent decisions maintaining that listing were accompanied by a sufficient statement of reasons relating to the legal conditions for the application to that organisation of Regulation No 2580/2001.
43


Second, the finding made in paragraph 51 of the judgment of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583) that the retention of a person, group or entity on the list provided for in Article 2(3) of Regulation No 2580/2001 is, in essence, an extension of the initial listing should be read in the context of the verification of whether there is an ongoing risk of that person, group or entity being involved in terrorist activities, the only relevant question for assessing the possibility of such a retention being, in principle, to ascertain whether, since the listing at issue 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 risk (see, to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 46).
44


The decision initially including a person, group or entity on the list provided for in Article 2(3) of Regulation No 2580/2001 and the subsequent act maintaining that listing are two distinct legal measures adopted in reliance upon different legal bases, the first one being based on Article 1(4) of Common Position 2001/931 and presupposing the existence of a national decision by a competent authority and the second one being based on Article 1(6) of Common Position 2001/931 and not requiring the existence of such a national decision. That distinction is attributable to the fact that the retention of a person, group or entity on that list is not just an extension of the original listing, but presupposes in particular that there is an ongoing risk of that person, group or entity being involved in terrorist activities, as initially established by the Council (see, to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 59 to 61).
48


In that regard, it should be noted that, when the validity of a decision ordering the retention of a person, group or entity on the list provided for in Article 2(3) of Regulation No 2580/2001 is contested before the Courts of the European Union, these are required to determine, in particular, first, whether the obligation to state reasons laid down in Article 296 TFEU has been complied with and, therefore, whether the reasons relied on are sufficiently detailed and specific, and, second, whether those reasons are substantiated (see, to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 70). In the present case, it must be made clear that the questions asked by the referring court only concern the Council’s obligation to state reasons as regards the acts at issue in the main proceedings.
49


In that context, it should further be noted that the statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the act in such a way as to enable the persons concerned to ascertain the reasons for the measure so that they can assess whether it is well founded and to enable the court having jurisdiction to exercise its power of review (see, to that effect, judgments of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 138; of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraph 54; and of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 29).
50


In respect of the conditions under which the Council may, when reviewing the inclusion of a person, group or entity on the list provided for in Article 2(3) of Regulation No 2580/2001, decide to retain that listing, it should be noted that, as has already been stated in paragraph 44 of the present judgment, Article 1 of Common Position 2001/931 draws a distinction between the initial inclusion of a person, group or entity on that list, referred to in paragraph 4 thereof, and the retention on that list of a person, group or entity already listed, referred to in paragraph 6 thereof (see, to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 58).
51


Whilst the initial decision to include on the list provided for in Article 2(3) of Regulation No 2580/2001 requires the Council to base that inclusion on precise information or material in the relevant file which indicates that a decision was taken by a competent authority, with regard to the subsequent decisions maintaining that listing, that institution is obliged to take into account facts which demonstrate whether, since the initial listing 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, group or entity concerned in terrorist activities (see, to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 45 and 46 and the case-law cited).
52


In the process of verifying whether the risk of the person, group or entity concerned being involved in terrorist activities is ongoing, the subsequent fate of the national decision that served as the basis for the initial inclusion of that person, group or entity on the list provided for in Article 2(3) of Regulation No 2580/2001 and new facts or material, which demonstrate that that risk is ongoing, must be duly taken into consideration (see, to that effect, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 156, and of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 52 and 54).
55


As regards the question of ascertaining whether those reasons were appropriate to demonstrate that the risk of the LTTE’s involvement in acts of terrorism is ongoing, it should be noted that, in the judgment of 26 July 2017, Council v LTTE (C‑599/14 P, EU:C:2017:583) concerning the legality of the acts maintaining the inclusion of the LTTE on the list provided for in Article 2(3) of Regulation No 2580/2001 during the years 2011 to 2014, the Court noted, first of all, that a considerable amount of time elapsed between the adoption, during 2001, of the UK decisions that served as a basis for the LTTE’s initial inclusion on that list and the adoption of acts maintaining that listing during the years 2011 to 2014. Next, the Court found that, as is apparent from the statements of reasons for those acts, the LTTE incurred a military defeat, announced by the Sri Lankan Government in May 2009, which significantly weakened that organisation. The Court inferred therefrom that the Council was obliged to base the retention of the LTTE on that list on new facts or material demonstrating that the risk of the LTTE being involved in terrorist activities was ongoing (see, to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 55).
58


In the second place, as regards the material change in circumstances, the Court already ruled that the military defeat incurred by the LTTE in May 2009 represented a significant change in circumstances, one that was capable of calling in question the ongoing nature of the risk of the LTTE’s involvement in terrorist activities, and that the Council was obliged to refer, in the statements of reasons for the decisions adopted during the years 2011 to 2014 maintaining the LTTE on the list provided for in Article 2(3) of Regulation No 2580/2001, to the evidence supporting its assessment that, notwithstanding that military defeat, the likely intention of the LTTE was to continue terrorist attacks in Sri Lanka (see, to that effect, the judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 79).