1 By its appeal, the Kurdistan Workers’ Party (PKK) asks the Court of Justice to set aside the judgment of the General Court of the European Union of 14 December 2022, PKK v Council (T‑182/21, EU:T:2022:807; ‘the judgment under appeal’), by which the General Court dismissed its action seeking annulment of: - Council Implementing Regulation (EU) 2021/138 of 5 February 2021 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, and repealing Implementing Regulation (EU) 2020/1128 (OJ 2021 L 43, p. 1); - Council Implementing Regulation (EU) 2021/1188 of 19 July 2021 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, and repealing Implementing Regulation (EU) 2021/138 (OJ 2021 L 258, p. 14); - Council Implementing Regulation (EU) 2022/147 of 3 February 2022 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, and repealing Implementing Regulation (EU) 2021/1188 (OJ 2022 L 25, p. 1); - Council Decision (CFSP) 2021/142 of 5 February 2021 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision (CFSP) 2020/1132 (OJ 2021 L 43, p. 14); - Council Decision (CFSP) 2021/1192 of 19 July 2021 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision (CFSP) 2021/142 (OJ 2021 L 258, p. 42); and - Council Decision (CFSP) 2022/152 of 3 February 2022 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision (CFSP) 2021/1192 (OJ 2022 L 25, p. 13), in so far as those regulations and decisions (together, ‘the acts at issue’) concern the PKK.
2 On 28 September 2001, the United Nations Security Council adopted Resolution 1373 (2001) laying out wide-ranging strategies to combat terrorism and, in particular, the financing of terrorism.
3 The preamble to that resolution reaffirms ‘the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts’. It also draws attention to the obligation for States ‘to complement international cooperation by taking additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism’.
4 Point 1(c) of that resolution provides, inter alia, that all States are to freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled by such persons; and of persons and entities acting on behalf of, or at the direction of, such persons and entities.
5 That resolution does not establish a list of names of persons to whom those restrictive measures must be applied.
6 In order to implement United Nations Security Council Resolution 1373 (2001), on 27 December 2001 the Council of the European Union adopted Common Position 2001/931/CFSP on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93).
7 Article 1(1), (3), (4) and (6) of that common position is worded as follows: ‘1. This Common Position applies in accordance with the provisions of the following Articles to persons, groups and entities involved in terrorist acts and listed in the Annex. … 3. For the purposes of this Common Position, “terrorist act” shall mean one of the following intentional acts, which, given its nature or its context, may seriously damage a country or an international organisation, as defined as an offence under national law, where committed with the aim of: (i) seriously intimidating a population, or (ii) unduly compelling a Government or an international organisation to perform or abstain from performing any act, or (iii) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation: (a) attacks upon a person’s life which may cause death; (b) attacks upon the physical integrity of a person; (c) kidnapping or hostage taking; (d) causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property, likely to endanger human life or result in major economic loss; (e) seizure of aircraft, ships or other means of public or goods transport; (f) manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of, biological and chemical weapons; (g) release of dangerous substances, or causing fires, explosions or floods the effect of which is to endanger human life; (h) interfering with or disrupting the supply of water, power or any other fundamental natural resource, the effect of which is to endanger human life; (i) threatening to commit any of the acts listed under (a) to (h); (j) directing a terrorist group; (k) participating in the activities of a terrorist group, including by supplying information or material resources, or by funding its activities in any way, with knowledge of the fact that such participation will contribute to the criminal activities of the group. For the purposes of this paragraph, “terrorist group” shall mean a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist acts. “Structured group” means a group that is not randomly formed for the immediate commission of a terrorist act and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure. 4. The list in the Annex shall be drawn up on the basis of precise information or material in the relevant file which indicates that a decision has been taken by a competent authority in respect of the persons, groups and entities concerned, irrespective of whether it concerns the instigation of investigations or prosecution for a terrorist act, an attempt to perpetrate, participate in or facilitate such an act based on serious and credible evidence or clues, or condemnation for such deeds. Persons, groups and entities identified by the Security Council of the United Nations as being related to terrorism and against whom it has ordered sanctions may be included in the list. For the purposes of this paragraph “competent authority” shall mean a judicial authority, or, where judicial authorities have no competence in the area covered by this paragraph, an equivalent competent authority in that area. … 6. The names of persons and entities on the list in the Annex shall be reviewed at regular intervals and at least once every six months to ensure that there are grounds for keeping them on the list.’
8 Article 2 of that common position provides: ‘The European Community, acting within the limits of the powers conferred on it by the Treaty establishing the European Community, shall order the freezing of the funds and other financial assets or economic resources of persons, groups and entities listed in the Annex.’
9 Having considered that a regulation was necessary in order to implement at EU level the measures set out in Common Position 2001/931, the Council adopted Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70).
10 Article 2 of that regulation provides: ‘1. Except as permitted under Articles 5 and 6: (a) all funds, other financial assets and economic resources belonging to, or owned or held by, a natural or legal person, group or entity included in the list referred to in paragraph 3 shall be frozen; (b) no funds, other financial assets and economic resources shall be made available, directly or indirectly, to, or for the benefit of, a natural or legal person, group or entity included in the list referred to in paragraph 3. 2. Except as permitted under Articles 5 and 6, it shall be prohibited to provide financial services to, or for the benefit of, a natural or legal person, group or entity included in the list referred to in paragraph 3. 3. The Council, acting by unanimity, shall establish, review and amend the list of persons, groups and entities to which this Regulation applies, in accordance with the provisions laid down in Article 1(4), (5) and (6) of Common Position 2001/931/CFSP; such list shall consist of: (i) natural persons committing, or attempting to commit, participating in or facilitating the commission of any act of terrorism; (ii) legal persons, groups or entities committing, or attempting to commit, participating in or facilitating the commission of any act of terrorism; (iii) legal persons, groups or entities owned or controlled by one or more natural or legal persons, groups or entities referred to in points (i) and (ii); or (iv) natural legal persons, groups or entities acting on behalf of or at the direction of one or more natural or legal persons, groups or entities referred to in points (i) and (ii).’
11 The background to the dispute is set out in paragraphs 2 to 11 of the judgment under appeal. So far as concerns the examination of the present appeal, the following aspects should be borne in mind.
12 The PKK - the applicant at first instance and the appellant on appeal - was established in 1978 and began an armed struggle against the Turkish Government in order to obtain recognition of the Kurdish people’s right to self-determination.
13 The appellant’s name was not initially included either on the list contained in the annex to Common Position 2001/931 or on the list referred to in Article 2(3) of Regulation No 2580/2001.
14 On 2 May 2002, the Council adopted Common Position 2002/340/CFSP updating Common Position 2001/931/CFSP on the application of specific measures to combat terrorism (OJ 2002 L 116, p. 75). The annex to Common Position 2002/340 updated the list of persons, groups and entities to which the restrictive measures laid down by Common Position 2001/931 apply and, in particular, inserted on that list the name of the appellant, identified as the ‘Kurdistan Workers’ Party (PKK)’. That same day, the Council adopted Decision 2002/334/EC implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2001/927/EC (OJ 2002 L 116, p. 33). Decision 2002/334 included the appellant’s name on the list provided for in Article 2(3) of Regulation No 2580/2001 in the same terms as those used in the annex to Common Position 2002/340.
15 Those acts have since been regularly updated pursuant to Article 1(6) of Common Position 2001/931 and Article 2(3) of Regulation No 2580/2001. The appellant’s name has continued to be included on the lists of groups and entities to which the restrictive measures apply (‘the lists at issue’), despite several of the decisions and regulations to which those lists were annexed having been challenged before the General Court or annulled by it. Since 2 April 2004, the name of the entity included on the lists at issue has been the ‘Kurdistan Workers’ Party (PKK) (a.k.a. KADEK, a.k.a KONGRA-GEL)’.
16 In the statements of reasons for Decision 2021/142 and Implementing Regulation 2021/138 (‘the first set of acts at issue’), the Council explained that the maintenance of the appellant’s name on the lists at issue was based, first, on three decisions of the authorities of the United Kingdom of Great Britain and Northern Ireland, the first of which had been taken on 29 March 2001 by the Secretary of State for the Home Department of the United Kingdom (‘the United Kingdom’s 2001 decision’) under the UK Terrorism Act 2000, as supplemented by an order of 14 July 2006, which considered ‘KADEK’ and ‘KONGRA-GEL’ to be alternative names for the PKK. The second was a decision of the Secretary of State for the Home Department of 3 December 2014 maintaining the proscription of the PKK and the third an order made by the Secretary of State for the Home Department in 2020 stating that the ‘TAK’ should not be proscribed separately but should be included in the proscription of the PKK.
17 Secondly, the maintenance of the appellant’s name on the lists at issue was also based on a decision of the French authorities, in the present case a judgment of 2 November 2011 delivered by the tribunal de grande instance de Paris (Regional Court, Paris, France) convicting the centre culturel kurde Ahmet Kaya (Ahmet Kaya Kurdish Cultural Centre) of participation in a criminal association in order to prepare an act of terrorism and of financing a terrorist undertaking, which was upheld on appeal by a judgment of 23 April 2013 of the cour d’appel de Paris (Court of Appeal, Paris, France) and, on further appeal, by a judgment of 21 May 2014 of the Cour de cassation (Court of Cassation, France).
18 Thirdly, the maintenance of the appellant’s name on the lists at issue was based on two decisions of the Government of the United States of America, namely a decision of 8 October 1997 classifying the PKK as a ‘foreign terrorist organisation’ under section 219 of the US Immigration and Nationality Act, confirmed on 5 February 2019, and a decision of 31 October 2001 classifying the PKK as a ‘specially designated global terrorist’, pursuant to Executive Order No 13224 (together, ‘the decisions of the US authorities’).
19 The statements of reasons for Decision 2021/1192 and Implementing Regulation 2021/1188 indicated, in addition to the reasons already set out in the statements of reasons for the first set of acts at issue, that the Council had further examined the incident of 24 August 2014, which had previously formed the basis of the Secretary of State for the Home Department’s decision of 3 December 2014 and had involved an attack on a power plant and the kidnapping of three Chinese engineers.
20 By Decision 2022/152 and Implementing Regulation 2022/147, the appellant’s name was maintained on the lists at issue. The statements of reasons for those acts referred, in addition to the previous reasons, to an attack on a Turkish military post in Iraq on 20 August 2020 by an armed drone belonging to the PKK, which the Council regarded as a terrorist act demonstrating there was an ongoing risk of the PKK being involved in terrorism.
21 By application lodged at the Court Registry on 7 April 2021, the PKK brought an action for annulment of the first set of acts at issue.
22 By subsequent statements of modification, the PKK sought the annulment of all the acts at issue in so far as they concern it.
23 In support of its action for annulment, the PKK essentially raised seven pleas in law. Those pleas alleged, first, infringement of the principle of legal certainty and of Article 1(2) of Common Position 2001/931 or Article 2(3) of Regulation No 2580/2001; secondly, infringement of Article 1(3) of that common position; thirdly, infringement of Article 1(4) of the common position; fourthly, infringement of Article 1(6) of the common position; fifthly, breach of the principles of proportionality and subsidiarity; sixthly, failure to fulfil the obligation to state reasons; and, seventhly, breach of the rights of the defence and of the right to effective judicial protection.
24 After considering and rejecting the first plea, which will not be addressed in the context of the present appeal, the General Court examined the third plea, alleging infringement of Article 1(4) of Common Position 2001/931. It recalled that a distinction had to be drawn between acts including the name of a person or entity on a fund-freezing list for the first time, which are governed by Article 1(4) of Common Position 2001/931, and acts maintaining the person or entity’s name on that list, which are governed by Article 1(6) thereof, with the result that only the two decisions on which the appellant’s initial listing in 2002 was based, namely the United Kingdom’s 2001 decision and the decisions of the US authorities, could be taken into account.
25 After classifying the United Kingdom’s 2001 decision as a decision of a ‘competent authority’ complying with the requirements relating to ‘precise information or material in the relevant file which indicates that a decision has been taken by a competent authority’, within the meaning of Article 1(4) of Common Position 2001/931, and, after drawing attention, in paragraph 71 of the judgment under appeal, to the content of the passages contained in the statements of reasons for the acts at issue dealing with that decision, the General Court, in the context of that classification, assessed the ‘distance in time’ separating the incidents taken into account in that decision and the date on which it was taken. It stated, in paragraphs 76 to 81 of its judgment, that despite it being disputed that threats of attacks were actually made against Turkish tourist resorts between 1995 and 1999, which it was not for the Council to verify, the distance in time between the most recent events, which occurred in 1999, and the date on which the United Kingdom’s 2001 decision was taken was approximately two years and that such a distance in time of less than five years could not be regarded as excessive. The General Court therefore rejected the third plea in so far as the acts at issue are based on the United Kingdom’s 2001 decision. However, it upheld that plea in so far as those acts are based on the decisions of the US authorities. According to the General Court, apart from the fact that the decision of 31 October 2001 was not published and there was nothing to indicate that the reasons for that decision were notified to the interested party, only the operative part of the decision of 8 October 1997 was published in the United States Federal Register, so that the mere reference to that publication in the statement of reasons for the acts at issue was insufficient for it to be found that the Council had carried out the necessary verification as to compliance, in the United States of America, with the principle of the rights of the defence.
26 In its examination of the second plea, alleging infringement of Article 1(3) of Common Position 2001/931, the General Court, first of all, in paragraphs 109 to 111 of the judgment under appeal, acknowledged the existence of the customary principle of self-determination. However, and without taking a view on its application in the present case or on the lawfulness of resorting to armed force in order to achieve self-determination, it held that that principle does not permit recourse to means that fall under Article 1(3), since an exception to the prohibition of terrorist acts has no basis in EU or international law.
27 In paragraphs 115 to 117 of the judgment under appeal, the General Court rejected the appellant’s argument relating to the taking into account of the legitimate nature of the armed conflict for the self-determination of the Kurdish people for the purposes of interpreting the aims referred to in the first subparagraph of Article 1(3) of Common Position 2001/931, stating as follows: ‘115 … a distinction must be drawn between, on the one hand, the objectives which a people or the inhabitants of a territory seek to attain and, on the other, the conduct in which they engage in order to attain it. The “aims” referred to in points (i) to (iii) of the first subparagraph of Article 1(3) of Common Position 2001/931 do not correspond to such objectives, which may be described as ultimate or underlying objectives. They refer, as is apparent from the terms used (intimidation, compulsion, destabilisation or destruction), to the very nature of the acts carried out, which leads to the conclusion that the first subparagraph of Article 1(3) of Common Position 2001/931 refers only to “acts” and not to “aims” … 116 Thus, in particular, contrary to what the applicant claims, the aim pursued by the attacks against the fundamental structures of the Turkish State (point (iii) of the first subparagraph of Article 1(3) of Common Position 2001/931), which consists of altering those structures in order to render them more democratic, even if proven, does not have to be taken into account. Similarly, the term “unduly” (point (ii) of the first subparagraph of Article 1(3) of Common Position 2001/931) must be understood as referring to the unlawful nature of the coercion exercised, in particular by the means of the coercive measures used, and is not to be assessed in the light of the allegedly legitimate nature of the aim pursued by the use of such coercion. Lastly, as regards the intimidation of the population (point (i) of the first subparagraph of Article 1(3) of Common Position 2001/931), in respect of which the applicant claims that the armed conflict which it conducts for the self-determination of the Kurdish people is such that only military objectives are targeted, it must be held that that argument has no basis in fact, since several of the acts mentioned in the statements of reasons - in particular attacks directed against tourist resorts - targeted civilian populations primarily, not collaterally … 117 Lastly, it must be pointed out that it cannot be inferred from the foregoing that the tool for preventing terrorism, namely Common Position 2001/931, and, more generally, the entire system of restrictive measures of the European Union, constitute an obstacle to the exercise of the right to self-determination of populations in oppressive States. Common Position 2001/931 and its implementation by the Council do not seek to determine who, in a conflict between a State and a group, is right or wrong, but to combat terrorism …. In such a scenario, it is for the Council, making use of the broad discretion conferred on the EU institutions in the management of the external relations of the European Union …, to decide in respect of whom, be they legal or natural persons linked to the State concerned or a population wishing to exercise its right to self-determination, restrictive measures are to be adopted.’
28 The General Court rejected, in paragraph 119 of the judgment under appeal, the arguments seeking to dispute the terrorist aims of some of the acts on the ground that these were reprisals against the Turkish army.
29 Next, in order to establish the correspondence of some of the acts attributed to the PKK to the criteria laid down in Article 1(3) of Common Position 2001/931 in order to define the concept of ‘terrorist act’, the General Court pointed out, in paragraphs 122 to 125 of the judgment under appeal, that each of the types of act referred to in points (a) to (k) of the first subparagraph of Article 1(3) of that common position is capable of being in the nature of a terrorist act, with the result that it is immaterial that some of the acts did not cause death, within the meaning of point (a), did not involve the use of weapons, within the meaning of point (f), did not cause extensive destruction, within the meaning of point (d), or did not give rise to kidnapping, within the meaning of point (c), since, first, it is not disputed that those acts pursued other terrorist objectives referred to in points (a) to (k) of the first subparagraph of Article 1(3) of the common position and, secondly, other acts, amongst those referred to, pursued one or other of those objectives.
30 Finally, as regards the acts on which the United Kingdom’s 2001 decision was based, the General Court held, in paragraph 127 of the judgment under appeal, that even if the attack on a refinery carried out in 1993/1994 had not endangered human life, the appellant had not disputed the extensive destruction caused or the considerable economic losses along with the endangerment of human life resulting from it. In paragraph 128 of its judgment, the General Court went on to reject the appellant’s arguments relating to the differences between the definition of act of terrorism under UK law and terrorist act set out in Common Position 2001/931, finding that it is of no consequence that the criterion of seriousness is attached to the means used under UK law and to the aims in that common position. As to the acts relied on by the United Kingdom authorities as the basis for the decision of the Secretary of State for the Home Department of 3 December 2014, the General Court stated, in paragraph 129 of the judgment under appeal, with regard to the attack on the power plant on 24 August 2014, that the term ‘interfering with’ for the terrorist purpose, referred to in point (h) of the first subparagraph of Article 1(3) of the common position, described as ‘interfering with or disrupting the supply of water, power or any other fundamental natural resource, the effect of which is to endanger human life’, permits the inference that installations not yet in operation may also be concerned. Consequently, the General Court rejected the second plea, alleging infringement of Article 1(3) of Common Position 2001/931.
31 In the context of the examination of the fourth plea, alleging infringement of Article 1(6) of Common Position 2001/931, the General Court drew attention to the applicable case-law and thereafter, in paragraphs 141 to 157 of the judgment under appeal, examined the acts at issue in order to find that the most recent incidents taken into account dated from 2014, 2017 and 2020. It pointed out that the classification of those incidents as terrorist acts had not, moreover, been validly challenged, with the result that the Council had correctly updated its assessment of the risk of the PKK’s involvement in terrorism and that, in view of the ‘distance in time’ of less than five years separating the acts at issue, the Council was not required to continue updating its assessment beyond taking those facts into account. The General Court also found, in paragraphs 158 to 162 of the judgment under appeal, that the alleged changes in circumstances, relied on by the appellant, such as the peace process and its failure, the PKK’s role in combating ISIL, the Turkish State’s transformation into a totalitarian state which continues to oppress the Kurdish people and the United Kingdom’s withdrawal from the European Union did not reflect changes involving peace-making on the part of the PKK. The General Court therefore rejected that plea.
32 In the context of the examination of the fifth plea, the General Court held, in paragraphs 170 to 172 of the judgment under appeal, that there had been no breach of the principle of proportionality, since the Council had, in the acts at issue, correctly conducted the review of the ongoing risk of the appellant’s involvement in terrorism, having regard, inter alia, to the changes in circumstances claimed by the latter. The General Court stated that that conclusion was not called into question by the alleged ineffectiveness of the measures or their allegedly inappropriate nature. Similarly, the alleged effects on the Kurdish people or on anyone else wishing to support them is irrelevant.
33 As regards the sixth plea, alleging failure to fulfil the obligation to state reasons, the General Court made a finding of its own motion, in paragraphs 179 and 180 of the judgment under appeal, of an inadequate statement of reasons in relation to the first set of acts at issue, in so far as those acts referred to the incident of 24 August 2014 involving an attack on a power plant and the kidnapping of three Chinese engineers.
34 The General Court rejected the sixth plea in law as to the remainder. It recalled, in paragraphs 175 to 178 of its judgment, the case-law laid down in the judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316, paragraph 47), according to which, in order to fulfil the obligation to state reasons laid down in Article 296 TFEU, it is for the Council to provide sufficiently detailed and specific reasons to enable the person concerned to ascertain the reasons for maintaining his or her name on the fund-freezing lists and to enable the Court to exercise its power of review. In paragraphs 181 to 195 of the judgment under appeal, the General Court took a view on the various complaints raised by the appellant in that regard, pointing out, in particular, in paragraph 182 of its judgment, that the obligation to state reasons is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the act in question, so that objections and arguments intended to establish that an act is not well founded are irrelevant in the context of a plea alleging an inadequate statement of reasons or a lack of such a statement.
35 Lastly, in paragraph 213 of the judgment under appeal, the General Court upheld the seventh plea in so far as the Council had failed to disclose to the appellant the relevant information relating to its verification of compliance with the rights of the defence and the right to effective judicial protection by the United States authorities.
36 Consequently, by the judgment under appeal, the General Court dismissed the action in its entirety. It stated, in paragraph 214 of that judgment, that the fact that the pleas alleging infringement of Article 1(4) of Common Position 2001/931, failure to fulfil the obligation to state reasons and breach of the rights of the defence and of the right to effective judicial protection are in part well founded could not lead to the annulment of the acts at issue, since the illegalities found to exist, whether these concern the decisions of the US authorities or the incident of 24 August 2014 attributed to the PKK, did not call into question the Council’s assessment in the acts at issue relating to the ongoing risk of the PKK’s involvement in terrorism, which remains validly based on the continued application of the United Kingdom’s 2001 decision and, as the case may be, on other incidents which occurred in 2014, 2017 and 2020.
37 By decision of the President of the Court of 5 June 2023, the French Republic was granted leave to intervene in support of the form of order sought by the Council.
38 The PKK claims that the Court should: - join the present appeal to the appeal lodged under number C‑44/23 P; - set aside the judgment under appeal; - give final judgment on the matters raised in the present appeal and annul the acts at issue in so far as those acts concern the PKK (also known as ‘KADEK’ and ‘KONGRA-GEL’); - order the Council to pay the costs of the proceedings on appeal and at first instance, together with interest.
39 The Council contends that the Court should: - dismiss the appeal; - in the alternative, if the Court decides to set aside the judgment under appeal and give final judgment itself, dismiss the action for annulment of the acts at issue in the judgment under appeal; - order the PKK to pay the costs of the proceedings on appeal and at first instance.
40 The French Republic contends that the Court should dismiss the appeal.
41 The appellant puts forward five grounds in support of its appeal, alleging, first, error of law as regards the General Court’s interpretation of the first subparagraph of Article 1(3) of Common Position 2001/931, in particular the interpretation of the word ‘aims’ contained therein and its application in the present case; secondly, error of law by the General Court in finding that the Council was entitled to rely on the United Kingdom’s 2001 decision in breach of the requirements laid down in Article 1(3) and (4) of that common position; thirdly, error by the General Court in its assessment of the review carried out by the Council under Article 1(6) of the common position; fourthly, error by the General Court in its interpretation of the principle of proportionality; and, fifthly, error by the General Court in its assessment of whether the reasons provided by the Council in the statement of reasons for the acts at issue were sufficient.
42 By its first ground of appeal, the appellant submits that, in paragraphs 103 to 130 of the judgment under appeal, the General Court misinterpreted the first subparagraph of Article 1(3) of Common Position 2001/931 and also misapplied that provision in the present case, by holding that the ‘aims’ set out in points (i) to (iii) thereof refer to the very nature of the acts carried out.
43 The appellant argues that the first subparagraph of Article 1(3) of Common Position 2001/931 differentiates between acts that are sufficiently serious to be regarded as terrorist acts, as listed under points (a) to (k) thereof, and the aims with which those acts must be committed, as set out in points (i) to (iii) thereof. Since those conditions are cumulative, it is for the Council to establish, first, that an organisation has committed one or more of the acts listed under points (a) to (k) and, secondly, that that act or those acts were committed with a terrorist aim, before it can conclude that a terrorist act within the meaning of that common position has occurred. By stating, in paragraph 115 of the judgment under appeal, that the ‘aims’ set out in points (i) to (iii) of the first subparagraph of Article 1(3) of the common position refer to ‘the very nature of the acts carried out’, the General Court erred in law in its interpretation of that twofold condition by removing, de facto, the independent requirement of a terrorist aim.
44 According to the appellant, it is true that, after drawing a distinction in paragraph 115 of the judgment under appeal between the objectives which a people or the inhabitants of a territory seek to attain and the conduct which they adopt in order to attain them, the General Court rightly held that the ‘aims’ set out in the first subparagraph of Article 1(3) of Common Position 2001/931 do not correspond to objectives which may be described as ultimate or underlying objectives. However, it cannot be inferred from this that the ultimate objective is irrelevant to the interpretation of the immediate aim of an act. Therefore, the General Court was wrong to hold, in paragraph 116 of the judgment under appeal, that such objective did not have to be taken into account.
45 In addition, with reference to paragraph 116 of that judgment, the appellant states that the word ‘unduly’ in point (ii) of the first subparagraph of Article 1(3) of Common Position 2001/931 does not refer solely to the unlawful nature of the compulsion exercised; if it did, that word would be unnecessary since, in order to fall within the scope of Article 1(3), the act must be unlawful. Consequently, that word should be construed as providing additional protection against an act being classified as a terrorist act.
46 The appellant maintains that the General Court was also wrong to find, in paragraph 115 of the judgment under appeal, that ‘the terms used (intimidation, compulsion, destabilisation or destruction)’ refer to ‘the very nature of the acts carried out’, since it is not possible to determine whether an act destabilises or destroys fundamental structures of the State without taking into account the organisation’s objectives as regards those fundamental structures. Thus, if the aim pursued is to bring those fundamental structures more into line with the requirements of international law and human rights, that act cannot be regarded as seeking to destabilise or destroy those structures. Given that the Court of Justice has already held that the customary principle of self-determination is ‘a legally enforceable right erga omnes and one of the essential principles of international law’ (judgment of 21 December 2016, Council v Front Polisario, C‑104/16 P, EU:C:2016:973, paragraph 88), the Council is required to take that principle into account when deciding to include an organisation on a sanctions list. The General Court was therefore also wrong to hold, in paragraph 117 of the judgment under appeal, that the application of the provisions of Common Position 2001/931 is not an impediment to the customary principle of self-determination.
47 According to the appellant, if the General Court’s reasoning were to be followed, the acts of any people who, in order to achieve self-determination, have no choice but to resort to armed force, would fall within the definition of terrorist act. That would negate the entire concept of international humanitarian law, which considers various military acts carried out in such a conflict to be legitimate acts. Instead of referring, as it did in paragraph 117 of the judgment under appeal, to the broad discretion conferred on the Council, the General Court should have taken account of the principle of self-determination when interpreting Article 1(3) of Common Position 2001/931.
48 Finally, referring to the arguments put forward at first instance, the appellant complains that the General Court refused to rule, in paragraph 110 of the judgment under appeal, on the application of the principle of self-determination in the present case and on the question of the lawfulness of recourse to armed force in order to achieve self-determination.
49 The Council, supported by the French Republic, contends that the first ground of appeal should be rejected.
50 The first ground of appeal concerns the General Court’s interpretation, in paragraphs 103 to 130 of the judgment under appeal, of the first subparagraph of Article 1(3) of Common Position 2001/931, according to which the ‘aims’ mentioned in that provision refer to the ‘very nature of the acts carried out’ and cannot take into consideration the possible existence of an armed conflict with a view to achieving a people’s self-determination.
51 In that regard, it follows from settled case-law that when interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (see judgment of 2 December 2021, Commission and GMB Glasmanufaktur Brandenburg v Xinyi PV Products (Anhui) Holdings, C‑884/19 P and C‑888/19 P, EU:C:2021:973, paragraph 70).
52 Regarding the wording of the first subparagraph of Article 1(3) of Common Position 2001/931, it should be noted that the definition of an act as a ‘terrorist act’ is dependent on two cumulative conditions being satisfied, namely, first, that the act is among those listed under points (a) to (k) thereof and, secondly, that the aim with which the act is committed falls within one of the aims referred to in points (i) to (iii) thereof.
53 As the appellant moreover acknowledged, the General Court was therefore right to find, in paragraph 128 of the judgment under appeal, that that common position defines terrorist acts both by the aims pursued and by the means employed for those purposes.
54 By contrast, contrary to what the appellant maintains, the wording of the first subparagraph of Article 1(3) of Common Position 2001/931 in no way indicates that the political objective pursued by the act in question or the nature of the claims made by the perpetrator of that act may be relevant for the purposes of defining ‘terrorist act’.
55 That interpretation of Article 1(3) of Common Position 2001/931 is confirmed by the context of that provision and by the objectives pursued by the Council at the time the common position was adopted.
56 As is apparent from recitals 5 to 7 of Common Position 2001/931 and recitals 3, 5 and 6 of Regulation No 2580/2001, the Council adopted that common position and, thereafter, in accordance with it, that regulation in order, in particular, to implement at EU level United Nations Security Council Resolution 1373 (2001), which ‘reaffirm[ed] the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts,’ and called on States ‘to complement international cooperation by taking additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism’.
57 In that connection, it should also be borne in mind that Common Position 2001/931 essentially pursues that preventive objective of combating international terrorism, cutting it off from its financial resources by freezing the funds and economic resources of persons or entities suspected of involvement in activities linked to terrorism (see, to that effect, judgment 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 67).
58 Thus, the intentional acts listed under points (a) to (k) of the first subparagraph of Article 1(3) of Common Position 2001/931 are treated as terrorist acts if they are committed with the aim of seriously intimidating a population, unduly compelling a Government or an international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation, irrespective of the political objective or any other objective of the perpetrator of the terrorist act in question.
59 In that regard, it should be noted that the purpose of Common Position 2001/931 and Regulation No 2580/2001 is not to punish terrorist acts, but to combat terrorism by preventing the financing of acts of terrorism (judgment of 14 March 2017, A and Others, C‑158/14, EU:C:2017:202, paragraph 96).
60 By contrast, none of the recitals or objectives referred to can be construed as meaning that acts which pursue an allegedly legitimate objective should be excluded from the scope of Common Position 2001/931, with the result that the Court must reject the appellant’s argument that account should be taken of the possible existence of the objective of self-determination in order to determine whether an act has been committed with a terrorist aim.
61 In paragraphs 106 and 107 of the judgment under appeal, the General Court took a view on that argument, pointing out - without being challenged by the appellant - that the existence of an armed conflict within the meaning of international humanitarian law does not preclude the application of provisions of EU law on the prevention of terrorism, such as Common Position 2001/931, to potential terrorist acts committed in that context (see, to that effect, judgment of 14 March 2017, A and Others, C‑158/14, EU:C:2017:202, paragraphs 97 and 98), and stating that that common position makes no distinction as regards its scope according to whether or not the act in question is committed in the context of an armed conflict within the meaning of international humanitarian law.
62 Although the General Court observed, in paragraph 109 of the judgment under appeal, that the customary principle of self-determination referred to, in particular, in Article 1 of the Charter of the United Nations is a principle of international law applicable to all non-self-governing territories and to all peoples who have not yet achieved independence (judgment of 21 December 2016, Council v Front Polisario, C‑104/16 P, EU:C:2016:973, paragraph 88), that principle does not however mean that, in order to exercise the right to self-determination, a people or the inhabitants of a territory may have recourse to means that fall under Article 1(3) of Common Position 2001/931.
63 The Court has already held that international humanitarian law and Common Position 2001/931 pursue different aims and establish separate mechanisms, so that the application of that common position does not depend on classifications stemming from international humanitarian law. The Court has inferred from this that Common Position 2001/931 and Regulation No 2580/2001 must be interpreted as meaning that actions by armed forces during periods of armed conflict, within the meaning of international humanitarian law, may constitute ‘terrorist acts’ for the purposes of those acts of the European Union (see, to that effect, judgment of 14 March 2017, A and Others, C‑158/14, EU:C:2017:202, paragraphs 89, 91 and 97).
64 It was against that background that the General Court stated, in paragraph 115 of the judgment under appeal, that a distinction must be drawn between, on the one hand, the objectives which a people or the inhabitants of a territory seek to attain and, on the other, the conduct which they adopt in order to attain them, so that the ‘aims’ referred to in points (i) to (iii) of the first subparagraph of Article 1(3) of Common Position 2001/931 do not correspond to such objectives, which may be described as ultimate or underlying objectives.
65 Although the appellant concedes that the General Court was right to find that there is a difference between the ultimate or underlying objective for which an entity engages in armed conflict and the aim with which specific actions are carried out in the context of that conflict, it does not put forward any valid legal argument to support the conclusion that the ultimate or underlying objective is relevant to the assessment of the aim of those specific actions.
66 It follows that acts committed with any of the three aims referred to in points (i) to (iii) of the first subparagraph of Article 1(3) of Common Position 2001/931 may be classified as terrorist acts, even if their ultimate or underlying objective is, for example, to render a State’s fundamental structures more democratic. The General Court was therefore right to hold, in paragraph 116 of the judgment under appeal, that if the acts are committed with any of those three aims, there is no need to inquire about the objectives pursued by the organisation concerned, unless one of the two cumulative conditions to be satisfied for an act to be classified as a terrorist act is to be abolished. Those aims, which categorise the acts listed under points (a) to (k) of the first subparagraph of Article 1(3) and which are therefore of a purely functional nature, are wholly unrelated to any political objectives pursued or claims made by the perpetrators of an act, with the result that the ultimate or underlying objective of that act has no bearing on the classification of that act as a ‘terrorist act’.
67 In the light of the foregoing, the appellant’s argument directed at paragraph 110 of the judgment under appeal must also be rejected, not only because it merely challenges in unspecific terms the statement made by the General Court therein, but also because it is based on a misreading of that paragraph. In that paragraph, the General Court found that it was not necessary to take a position on the application of the principle of self-determination in the present case in order to address the argument concerning the interpretation of the aims referred to in Article 1(3) of Common Position 2001/931; the General Court did not, contrary to what the appellant claims, refuse to rule on the applicability of that principle.
68 Endorsing the appellant’s reasoning - according to which an organisation or entity is entitled to commit any of the acts listed under points (a) to (k) of the first subparagraph of Article 1(3) of Common Position 2001/931 provided that they are carried out with the general objective of achieving self-determination - would moreover produce an outcome at odds with the wording and context of that provision and with the objectives of the legislation of which it forms part, and would be contrary to the case-law cited in paragraphs 61 to 63 above.
69 Lastly, for those reasons, the General Court also did not err in law, in paragraph 116 of the judgment under appeal, in holding that the word ‘unduly’ in point (ii) of the first subparagraph of Article 1(3) of Common Position 2001/931 must not be assessed in the light of the alleged legitimate nature of the aim pursued by the exercise of the compulsion in question.
70 It follows from the foregoing that the first ground of appeal must be rejected.
71 By its second ground of appeal, the appellant submits that the General Court was wrong to find that the Council was entitled to rely on the United Kingdom’s 2001 decision as a ‘decision’ within the meaning of Article 1(4) of Common Position 2001/931, since the events described in the grounds for that decision were outdated and could not therefore support the conclusion that the appellant had committed terrorist acts enabling it to be classified as a ‘terrorist group’.
72 The appellant maintains that the General Court erred in referring, in paragraph 126 of the judgment under appeal, to the events on which the United Kingdom’s 2001 decision was based, namely the kidnapping of western tourists in the early 1990s, the attack on a refinery in 1993/1994, a campaign of attacks on tourist resorts over the same period and threats of attacks on tourist resorts between 1995 and 1999, and that it erred in examining those events and concluding that the Council was entitled to classify them as terrorist acts within the meaning of the first subparagraph of Article 1(3) of Common Position 2001/931. Since, in paragraphs 76 to 81 of that judgment, the General Court took into account only the events which occurred between 1995 and 1999, it must be inferred from this that the other, earlier, events are not relevant. Consequently, those earlier events could not substantiate the conclusion that the appellant had to be regarded as a terrorist group within the meaning of the second subparagraph of Article 1(3) of that common position, all the more so because the General Court reached the conclusion, in paragraph 71 of its judgment, that the PKK ‘appeared to have abandoned [its terrorist] campaign’.
73 The appellant states that, in any event, the General Court was wrong to hold, in paragraphs 78 to 81 of the judgment under appeal, that the threats of attacks on tourist resorts between 1995 and 1999 could be taken into account, given their distance in time. Even if it is conceded that the Council is not required to check whether the events found to have occurred in the national condemnation decisions actually took place, the onus is on the Council to verify that the competent national authority was of the view that they did indeed occur, providing clear and consistent arguments for its finding in the statement of reasons.
74 Consequently, it is argued, the General Court erred in law in finding, in paragraph 95 of the judgment under appeal, that the plea alleging infringement of Article 1(4) of Common Position 2001/931 should be rejected in so far as the acts at issue were adopted on the basis of the United Kingdom’s 2001 decision, and, in paragraph 130 of that judgment, that the plea alleging infringement of Article 1(3) of the common position should be rejected.
75 The appellant also submits that neither the Council nor the General Court was entitled to find that the alleged threats fulfilled the criteria set out in the first subparagraph of Article 1(3) of Common Position 2001/931. Those alleged threats could not be regarded as terrorist acts within the meaning of that provision, since the campaign of attacks resulting in fatalities had been abandoned.
76 According to the appellant, the difference between the definition of act of terrorism under UK law and terrorist act in Common Position 2001/931 is also relevant. The General Court thus erred in finding, in paragraph 128 of the judgment under appeal, that it is of no consequence that the criterion of seriousness is attached to the ‘means’ used under UK law and to the ‘aims’ in that common position, since that difference is significant, in particular with regard to threats. Thus, according to the appellant, the attack on the power plant in August 2014, which the General Court examined in paragraph 129 of that judgment, could be classified as a terrorist act within the meaning of that common position only if the interference with energy supplies had the effect of endangering human lives. However, the power plant was not yet operational at the time of the attack, with the result that that attack could not ‘seriously damage a country’ within the meaning of the first subparagraph of Article 1(3) of Common Position 2001/931, since the aim of the attack was in fact to preserve Kurdistan’s natural environment.
77 The Council, supported by the French Republic, contends that the second ground of appeal should be rejected.
78 The second ground of appeal concerns the alleged error made by the General Court, in paragraphs 71, 76 to 81, 95, 103 and 119 to 130 of the judgment under appeal, in so far as it took the United Kingdom’s 2001 decision into account in order to establish, first, that the Council had fulfilled its obligations under Article 1(4) of Common Position 2001/931 and, secondly, that the acts committed were terrorist acts within the meaning of Article 1(3) thereof.
79 In order to rule on the merits of that ground of appeal, a distinction must be drawn at the outset between, on the one hand, whether the United Kingdom’s 2001 decision may be classified as a decision of a competent authority within the meaning of Article 1(4) of Common Position 2001/931, in particular in the light of the date on which the incidents on which that decision is based occurred, and, on the other, whether those incidents may be classified, having regard in particular to their nature, as terrorist acts within the meaning of Article 1(3) thereof.
80 With respect, first of all, to Article 1(4) of Common Position 2001/931, the first subparagraph of that provision states that the fund-freezing list is to be ‘drawn up on the basis of precise information or material in the relevant file which indicates that a decision has been taken by a competent authority in respect of the persons, groups and entities concerned, irrespective of whether it concerns the instigation of investigations or prosecution for a terrorist act, an attempt to perpetrate, participate in or facilitate such an act based on serious and credible evidence or clues, or condemnation for such deeds’.
81 As regards the Council’s obligations when including a person or entity on the list, it is apparent from the references to a national decision, ‘precise information’ and ‘serious and credible evidence or clues’ in Article 1(4) of Common Position 2001/931 that that provision aims to protect the persons concerned by ensuring that they are included on the fund-freezing list 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 (see, to that effect, judgment 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 68).
82 In the absence of means on the part of the European Union to carry out its own investigations regarding the involvement of a person in terrorist acts, that requirement aims to establish that serious and credible evidence or clues exist of the involvement of that person 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 (judgment 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 69).
83 In the present case, the General Court found, in paragraph 71 of the judgment under appeal, that the Council had relied on the existence of decisions that it classified as decisions of a competent authority within the meaning of Article 1(4) of Common Position 2001/931, including the United Kingdom’s 2001 decision. The General Court first of all listed for that purpose the serious and credible evidence or clues, as indicated by the Council and regarded as reliable by the national authorities, comprising terrorist attacks believed to have been committed by the PKK since 1984, a terrorist campaign in the early 1990s, including the kidnapping of western tourists, an attack on a refinery and attacks on tourist resorts resulting in the deaths of foreign tourists in 1993-1994. The General Court pointed out, again in paragraph 71 of the judgment under appeal and contrary to what the appellant claims, that the Council had stated that even though the PKK appeared to have abandoned that campaign between 1995 and 1999, it had continued to threaten to attack tourist resorts during that period. Next, the General Court recalled, in paragraph 72 of its judgment, that according to the case-law, the ‘precise information or material in the relevant file’ required under Article 1(4) of Common Position 2001/931 must show that a decision has been taken in respect of the persons or entities concerned by a national authority meeting the definition in that provision so that, inter alia, those persons or entities can identify that decision, but that information or material need not relate to the content of that decision. Lastly, in paragraph 73 of the judgment under appeal, the General Court concluded that the Council had provided sufficiently precise information relating to the United Kingdom’s 2001 decision, within the meaning of Article 1(4) of that common position.
84 It follows from the foregoing that the General Court was entitled to find, in paragraph 75 of the judgment under appeal, that the Council had available to it precise information and material in the relevant file deriving from a decision of a competent authority, within the meaning of Article 1(4) of Common Position 2001/931. Since the appellant does not challenge that finding of the General Court and, in any event, has not adduced any evidence capable of casting doubt on it, the General Court was right to find that the Council was entitled to rely on the United Kingdom’s 2001 decision.
85 So far as concerns the argument that the General Court was wrong to find, in paragraphs 76 to 81, 127, 128 and 130 of the judgment under appeal, that acts prior to 1995 could validly be taken into account as part of the verification exercise under Article 1(3) of Common Position 2001/931, whereas they could not be taken into account in the context of Article 1(4) thereof, a distinction should be drawn between, on the one hand, the requirements relating to the initial listing of a person or entity, set out in Article 1(4) of that common position, as regards, in particular, the conditions of distance in time, and, on the other, the requirements relating to the definition of ‘terrorist act’ in Article 1(3) of the common position.
86 The initial listing of a person or entity, for the purposes of Article 1(4) of Common Position 2001/931, requires the acts on which such a decision is based to be sufficiently recent, in particular having regard to the objective of that provision which, as recalled in paragraph 81 above, is to protect the persons or entities concerned.
87 By contrast, Article 1(3) of that common position merely lays down the definition of ‘terrorist act’ for the purposes of the common position. In that context, it is open to the Council to take into account other earlier material which may be relevant for assessing the history and extent of the terrorist activities of the person or entity concerned, for the purposes of that provision.
88 It follows that, in the present case, the General Court was right to take into account acts prior to 1995, which occurred in 1990, 1993 and 1994, for the purposes of determining whether the aims pursued by the acts ascribed to the appellant were of a terrorist nature, under Article 1(3) of Common Position 2001/931, and that the General Court was also right to find that the ‘distance in time’ of approximately two years between the most recent events taken into account, dating from 1999, and the United Kingdom’s 2001 decision could not be regarded as excessive, therefore enabling that decision to be classified as a decision of a competent authority, within the meaning of Article 1(4) of the common position.
89 As regards the reference made by the General Court, in paragraph 79 of the judgment under appeal, to a distance in time of less than five years, inasmuch as it took into consideration only the most recent events on which the United Kingdom’s 2001 decision was based, it should be noted that the General Court referred to that five-year period citing case-law according to which a period of five years is not excessive. However, it is in no way apparent from the judgment under appeal that, by referring to that five-year period, the General Court took the view that the other events described in the United Kingdom’s 2001 decision occurred too long ago to be taken into consideration. The appellant’s argument is based on a misreading of that judgment and must therefore be rejected.
90 As regards, in the second place, the argument that the General Court wrongly concluded that the threats of attacks on Turkish tourist resorts fulfilled the criteria set out in the first subparagraph of Article 1(3) of Common Position 2001/931, that argument must also be rejected.
91 It follows from that provision that point (i) thereof expressly refers to ‘threatening to commit any of the acts listed under (a) to (h)’, such as attacks on a person’s life or causing widespread destruction.
92 The existence of threats to engage in any of the conduct listed under points (a) to (h) is therefore sufficient to justify the freezing of funds and the fact that the PKK abandoned its attack campaigns between 1995 and 1999 has no bearing on the categorisation of the threats as a terrorist act.
93 Accordingly, the General Court correctly concluded that the fact that no attacks had taken place over a given period of time did not preclude threats of attacks from continuing, threats that would then constitute terrorist acts within the meaning of the first subparagraph of Article 1(3) of Common Position 2001/931.
94 As for the appellant’s argument regarding the differences between the definition of act of terrorism under UK law and terrorist act set out in the first subparagraph of Article 1(3) of Common Position 2001/931, it should be recalled that the General Court held, in paragraph 128 of the judgment under appeal, that it is of no consequence that the criterion of seriousness is attached to the ‘means’ used under UK law and to the ‘aims’ in that common position.
95 In that regard, it is clear from paragraph 66 above that the aims listed under points (i) to (iii) of the first subparagraph of Article 1(3) of Common Position 2001/931 are of a purely functional nature and serve to characterise the acts referred to in points (a) to (k) of the first subparagraph of Article 1(3) thereof as terrorist acts. Accordingly, the General Court’s reasoning is not tainted by any inconsistency given that both EU law and the United Kingdom’s 2001 decision adopt a two-level definition of terrorist acts, defining them both by the aims pursued and by the means used to those ends.
96 The second ground of appeal must therefore be rejected as unfounded.
97 By its third ground of appeal, the appellant submits that the General Court erred in finding, in paragraphs 141 to 163 of the judgment under appeal, that the review carried out by the Council satisfied the conditions laid down in Article 1(6) of Common Position 2001/931.
98 Referring to the arguments it put forward in the context of the second ground of appeal, the appellant asserts that the United Kingdom’s 2001 decision does not satisfy the conditions laid down in Article 1(4) of Common Position 2001/931. The appellant also argues that the General Court was wrong to find, in paragraph 143 of the judgment under appeal, in conjunction with paragraph 119 thereof, that the Council was entitled to rely on an attack on a construction site for a new Turkish military outpost in May 2014 and to classify that attack as a terrorist act. Such an act is a typical example of an act which the appellant cannot be accused of having committed with a terrorist aim, since it was a direct response to a breach of peace talks by the Turkish Government and should be regarded, under international humanitarian law, as a legitimate military act.
99 Even if the Court were to conclude that the General Court did not err in its interpretation of Article 1(3) and (4) of Common Position 2001/931 in the case of the United Kingdom’s 2001 decision, the appellant submits that, given the significantly different nature of the attack carried out in May 2014 compared with the incidents relied on in connection with that decision, the attack in question was not sufficient to substantiate the existence of an ongoing risk of terrorist acts.
100 Since the appellant’s situation changed radically over the 16 years following the arrest, in 1999, of Mr Abdullah Öcalan, founder and leader of the PKK, it is argued that the attack on the unfinished Turkish military outpost in breach of peace talks cannot be treated on a par with the threat of attacks on Turkish tourist resorts in the 1990s.
101 Concerning the attack on a power plant on 24 August 2014, the appellant argues that the General Court erred in law, in paragraph 151 of the judgment under appeal, in finding that the Council had validly classified that attack as a terrorist attack. In that regard, the appellant restates its opposition - as expressed in its application for annulment, in its reply and at the hearing - to the finding of fact that Chinese engineers had been kidnapped.
102 In respect of the incident of 23 October 2017 involving an attack on a military vehicle and the incident of 20 August 2020 involving a drone attack on a Turkish military outpost, the appellant submits that the General Court was wrong to find, in paragraphs 147 and 155 of the judgment under appeal, in connection with their classification as terrorist acts, that the fact that those acts formed part of the armed conflict between the PKK and the Republic of Türkiye was irrelevant, when it is clear from the first ground of appeal that a necessary and proportionate military operation cannot be regarded as having a terrorist aim.
103 The appellant maintains that by holding, in essence, in paragraphs 158 to 162 of the judgment under appeal, that the continuation of the armed conflict entitled the Council to find that there was an ongoing risk of terrorist acts, the General Court disregarded the role played by the Republic of Türkiye, whereas the PKK had significantly changed its modus operandi.
104 The Council, supported by the French Republic, contends that the third ground of appeal should be rejected.
105 It should be borne in mind that, under Article 1(6) of Common Position 2001/931, the Council may maintain the person or entity concerned on a fund-freezing list if it concludes that there is an ongoing risk of that person or entity being involved in the terrorist activities which justified the initial entry on that list (judgment of 10 September 2020, Hamas v Council, C‑386/19 P, EU:C:2020:691, paragraph 38 and the case-law cited).
106 The only relevant question when determining whether maintenance on the list is appropriate is, in principle, 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 that risk (see to that effect, judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 46).
107 Whether such a risk is ongoing may be established, inter alia, by reference to the national decision justifying the initial listing, where that decision has recently been reviewed and, as a result of that review, it was concluded that maintaining the person or organisation at issue on the list was justified due to recent incidents making it clear that that person or organisation was still involved in terrorist activities. The purpose of such a review is to ensure that the Council’s decision is taken on a sufficient factual basis enabling it to conclude that such a risk exists (judgment of 10 September 2020, Hamas v Council, C‑386/19 P, EU:C:2020:691, paragraph 39).
108 In the process of verifying whether the risk of the person, group or entity concerned being involved in terrorist activities is ongoing, account should be taken, inter alia, in addition to the subsequent fate of the national decision that served as the basis for the initial entry of that person, group or entity on the fund-freezing list, of more recent facts which demonstrate that that risk still exists (judgment of 10 September 2020, Hamas v Council, C‑122/19 P, EU:C:2020:690, paragraph 38).
109 The General Court did not depart from that line of authority in the present case.
110 In that regard, it must be held, first, that the appellant’s arguments challenging the classification as terrorist acts, within the meaning of the first subparagraph of Article 1(3) of Common Position 2001/931, of the attack on a construction site for a new Turkish military outpost in May 2014, the attack on a power plant in August 2014, the attack on a military vehicle on 23 October 2017 and the drone attack on a Turkish military outpost on 20 August 2020, are ineffective in the context of the review carried out under Article 1(6) of that common position and must be rejected on the basis of the case-law cited in paragraph 105 above. In order to maintain a person or entity on a fund-freezing list, the Council need not establish that that person or entity committed a terrorist act, within the meaning of the first subparagraph of Article 1(3) of the common position, but only that there is an ongoing risk of that person or entity being involved in terrorist activities.
111 Secondly, it is also necessary to reject the appellant’s arguments that the acts on which the Council relied when reviewing whether there was an ongoing risk of the PKK being involved in terrorism do not establish to the requisite standard that such a risk exists, given that those acts are significantly different in nature and the PKK’s situation has changed radically, as it now supports peaceful solutions.
112 In that regard, it must be pointed out that the argument that the attack on a construction site for a new Turkish military outpost in May 2014 was justified is inadmissible. By merely referring to the existence of an armed conflict allegedly capable of justifying the act committed, which the appellant considers to be significantly different from the incidents relied on in the United Kingdom’s 2001 decision, and by claiming that that act was a direct response to a breach of peace talks by the Turkish Government, the appellant is not pleading that the General Court erred in law, but is asking the Court of Justice to substitute its own assessment of that evidence for that of the General Court.
113 It is apparent from Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal is limited to points of law and that the General Court therefore has sole jurisdiction to find and appraise the relevant facts and evidence. The assessment of the facts and evidence does not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (order of 27 January 2022, FT and Others v Commission, C‑518/21 P, EU:C:2022:70, paragraph 12 and the case-law cited).
114 For that reason, the appellant’s argument concerning the attack on a power plant on 24 August 2014 is also inadmissible, since the appellant merely restates its opposition to the General Court’s finding of fact that Chinese engineers were kidnapped, without calling into question any particular assessment by the General Court.
115 As for the appellant’s argument that the incidents of 23 October 2017 and 20 August 2020 should be regarded as manifestly necessary and proportionate military manoeuvres, that argument must be rejected as unfounded.
116 Although the General Court referred, in paragraph 146 of the judgment under appeal, to an attack on a Turkish military vehicle in June 2017, whereas the appellant points to an incident that occurred on 23 October 2017, it is apparent from paragraphs 147 and 154 of that judgment that the appellant does not dispute either that those military operations took place or the fact that it was responsible for them, since it states that they were manifestly necessary and proportionate as a result of the increase in hostilities by the Republic of Türkiye and the more widespread use of drones by it.
117 It must therefore be held that, in the context of the third ground of appeal, the appellant does not put forward any argument capable of casting doubt on the General Court’s legal assessment that those acts, the occurrence of which is not disputed, enabled the Council validly to update its assessment of the risk of the appellant’s involvement in terrorism.
118 Accordingly, the third ground of appeal must be rejected as in part inadmissible and in part unfounded.
119 By its fourth ground of appeal, the appellant states that, in paragraphs 103 and 164 to 173 of the judgment under appeal, the General Court erred in its interpretation of the principle of proportionality.
120 In the first place, the appellant submits that, in paragraphs 170 to 172 of the judgment under appeal, the General Court breached the principle of proportionality, which requires that acts of the EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see, to that effect, judgment of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 50).
121 According to the appellant, the General Court’s findings are, moreover, contradictory since, if the objective of the measures is, as the General Court expressly states, ‘to preserve peace, prevent conflicts and strengthen international security’, then clearly their effect on the peace process is an essential condition for their compliance with the principle of proportionality.
122 Moreover, by ruling that a peaceful and democratic solution to the conflict was irrelevant, it is argued that the General Court contradicted its finding in paragraph 162 of the judgment under appeal that the Council was right to consider that there had been no change in circumstances in 2019. The pursuit of a peaceful solution was regarded as relevant in the context of the review under Article 1(6) of Common Position 2001/931; according to the appellant, the same holds for the review of proportionality, especially since the ultimate objective of the armed conflict is the self-determination of a people. Even if that argument does not succeed in the context of the first ground of appeal, the appellant submits that it should be upheld in the context of the examination of the fourth ground of appeal, alleging breach of the principle of proportionality.
123 The appellant maintains that, as is clear from paragraph 166 of the judgment under appeal, the acts at issue pursue an objective of public interest, which is to contribute to international peace and security. Maintaining the PKK on the lists at issue in fact hampers the peace process, with the result that the restrictive measures provided for in those acts should be held to be inappropriate in the light of the objectives pursued.
124 In the second place, the appellant asserts that by only focusing on the objective pursued by the acts at issue, the General Court, in paragraphs 164 to 173 of the judgment under appeal, failed properly to ascertain whether the disadvantages caused, which also include the foreseeable consequences (see, to that effect, judgment of 12 March 2019, Tjebbes and Others, C‑221/17, EU:C:2019:189, paragraph 40), are disproportionate to the aims pursued. It cannot be accepted that, when determining whether the disadvantages caused by an act are disproportionate to the aims pursued, only the specific objectives of that act are taken into account and not its foreseeable consequences.
125 Against that background, the appellant maintains that although the Council cannot take into account every possible consequence of an act, it was nevertheless aware in the present case - if only because of the actions for annulment brought on 1 May 2014 in PKK v Council (T‑316/14) and on 7 March 2019 in PKK v Council (T‑148/19) - of the effects of the acts at issue on the Kurdish people, with the result that the General Court erred in law in stating, in paragraphs 171 and 172 of the judgment under appeal, that those effects were irrelevant.
126 The Council contends that the fourth ground of appeal must be rejected.
127 First of all, in so far as the appellant merely refers to the ultimate objective of the restrictive measures, namely to preserve peace and strengthen international security, within the meaning of Article 21(2)(c) TEU, and in so far as it claims - restating the arguments put forward at first instance - that maintaining the PKK on the lists at issue hinders the peace process and has repercussions for the Kurdish people, since the ultimate objective of the armed conflict in which the PKK is engaged is the self-determination of that people, the fourth ground of appeal is inadmissible. To that extent, what the appeal actually seeks is no more than a re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake in the context of an appeal.
128 Next, the PKK in no way substantiates its complaint alleging that the principle of self-determination is relevant when assessing the proportionality of the restrictive measures adopted by the acts at issue, with the result that that complaint must also be declared inadmissible.
129 Lastly, as regards the complaint that the General Court did not take account of the objective of the restrictive measures ordered and disregarded the foreseeable consequences thereof by failing to determine whether the disadvantages caused were disproportionate to the objective pursued, it must be borne in mind that, with regard to judicial review of compliance with the principle of proportionality, the legality of a measure can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see, to that effect, judgment of 25 June 2020, Vnesheconombank v Council, C‑731/18 P, EU:C:2020:500, paragraph 84).
130 It should also be recalled that restrictive measures, by definition, entail adverse effects, in particular for the entities subject to them (see, to that effect, judgment of 25 June 2020, Vnesheconombank v Council, C‑731/18 P, EU:C:2020:500, paragraph 86).
131 The importance of the objective pursued by the acts at issue, namely, in particular, to combat terrorism, which is part of the wider objective of maintaining peace and international security, in accordance with the objectives of the European Union’s external action set out in Article 21 TEU, is such as to justify adverse consequences (see, to that effect, judgment of 25 June 2020, Vnesheconombank v Council, C‑731/18 P, EU:C:2020:500, paragraph 87).
132 Having regard to the case-law cited in paragraphs 129 to 131 above, the General Court was right to hold, in paragraph 168 of the judgment under appeal, that in so far as the objective pursued by the Council in adopting the acts at issue was, in particular, to combat terrorism, those acts were consistent with that objective and could not, in any event, be regarded as manifestly inappropriate in the light of that objective.
133 Since the appellant does not put forward any legally relevant argument in support of that complaint, the complaint must be rejected.
134 It follows that the fourth ground of appeal must be rejected as in part inadmissible and in part unfounded.
135 By its fifth ground of appeal, the appellant submits that the General Court erred in finding, in paragraphs 174 to 196 of the judgment under appeal, that the Council had fulfilled its obligation to state reasons, even though, as stated in the preceding grounds of appeal, it is not clear from the statements of reasons for the acts at issue that the events occurring between 1995 and 1999, which were relied on in connection with the United Kingdom’s 2001 decision, actually substantiate that decision.
136 According to the appellant, the General Court was wrong to consider that the Council had fulfilled its obligation to state reasons. The Council failed to take account of the objective of self-determination and the context of the armed conflict. It wrongly relied on the incidents referred to in the United Kingdom’s 2001 decision. In its review, the Council wrongly classified the incidents mentioned in the acts at issue as terrorist acts and did not provide sufficient reasons to explain how the existence of a military operation could demonstrate that there was an ongoing risk of involvement in terrorist activities. The Council failed to give sufficient reasons explaining why the acts at issue should be regarded as proportionate, even though it had been informed of the likely consequences of including the PKK on the lists at issue for peace and for the situation of the Kurdish people and their supporters.
137 In addition, the appellant submits that the General Court erred in finding, in paragraphs 183 to 186 of the judgment under appeal, that the arguments put forward to show that the Council had failed to fulfil its obligation to state reasons by failing to determine whether the incidents examined by the national authorities could be classified as terrorist acts, within the meaning of the first subparagraph of Article 1(3) of Common Position 2001/931, and by failing to demonstrate that the United Kingdom’s decisions were relevant in the light of Article 1(4) and (6) thereof, had to be rejected as they concerned the question whether the reasoning was well founded. That determination is concerned not only with the basis for the statement of reasons, but also with the obligation to state reasons itself.
138 The Council contends that the fifth ground of appeal is inadmissible and, in any event, unfounded.
139 As regards the admissibility of the fifth ground of appeal, it should be noted that the appellant, in directing its complaints against paragraphs 174 to 196 of the judgment under appeal, does not clearly indicate either the passages which it considers to be vitiated by an error of law, save the complaints directed against paragraphs 183 to 186 of that judgment, or the legal arguments relied on in support of its position. In particular, it does not explain in what respect the case-law of the Court of Justice, cited by the General Court, is incorrect. Thus, the appellant’s arguments seek no more than a re-examination of the application submitted to the General Court, instead of being directed against the judgment under appeal in order to enable the Court of Justice to undertake its review (see, to that effect, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 48).
140 Some of the arguments relied on by the appellant in the context of that ground of appeal actually seek to challenge the General Court’s assessment not of the statement of reasons for the acts at issue, but of the appropriateness of the restrictive measures at issue to their objectives. Those arguments, relating to the objective of self-determination and the context of the armed conflict, the incidents referred to in the United Kingdom’s 2001 decision, the classification of the incidents mentioned in the acts at issue as terrorist acts and the reasons why the acts at issue must be regarded as proportionate, fall under the other grounds of appeal to which the appellant expressly refers and have been rejected. They are therefore irrelevant to the fifth ground of appeal, alleging an inadequate statement of reasons.
141 It should also be noted that the statement of reasons for an act of the Council which imposes a restrictive measure must, as the General Court rightly pointed out in paragraph 175 of the judgment under appeal, identify the actual and specific reasons why the Council considers, in the exercise of its discretion, that that measure must be adopted in respect of the person concerned (see, to that effect, judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 47 and the case-law cited).
142 However, as the General Court recalled in paragraph 176 of the judgment under appeal, the statement of reasons required by Article 296 TFEU must be appropriate to the act in question and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the act in question, the nature of the reasons given and the interest which the addressees of the act, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. 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 is sufficient 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. Consequently, the reasons given for an act adversely affecting a person are sufficient if that act was adopted in a context which was known to that person and which enables him or her to understand the scope of the measure concerning him or her (judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 48 and the case-law cited).
143 As regards, more specifically, acts that maintain a person or entity on a fund-freezing list, the Council is required to verify 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 that person or entity in terrorist activities (see, to that effect, judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 49 and the case-law cited).
144 In that regard, it should be made clear that, as regards such acts, the Courts of the European Union are required to determine, 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, as the General Court also recalled in paragraph 177 of the judgment under appeal, and, secondly, whether those reasons are substantiated, which requires those courts to ensure, as part of the review of the substantive legality of those reasons, that those acts have a sufficiently solid factual basis and to verify the facts alleged in the statement of reasons underpinning those acts (judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 52 and the case-law cited).
145 That being said, the issue of the statement of reasons, which concerns an essential procedural requirement, is separate from that of the evidence of the alleged conduct, which concerns the substantive legality of the act in question and involves assessing the truth of the facts set out in that act and the classification of those facts as evidence justifying the use of restrictive measures against the person concerned (judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 55 and the case-law cited).
146 In that regard, the General Court was right to hold, in paragraph 185 of the judgment under appeal, that whether the Council had fulfilled its obligation to verify that the facts relied on by the national authorities could be classified as terrorist acts, within the meaning of the first subparagraph of Article 1(3) of Common Position 2001/931, had been examined in response to the plea alleging infringement of that provision.
147 It follows from the above that the arguments claiming that those facts are not well founded are, in the context of the fifth ground of appeal alleging an inadequate statement of reasons, irrelevant, with the result that that ground of appeal must be rejected as inadmissible and, in any event, as unfounded.
148 It follows from all of the foregoing considerations that, since none of the grounds of appeal has been upheld, the appeal must be dismissed in its entirety.
149 Under Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
150 Since the Council has applied for costs and the appellant has been unsuccessful, the appellant must be ordered to bear its own costs and to pay those incurred by the Council.
151 In accordance with Article 140(1) of the Rules of Procedure, which applies, mutatis mutandis, to appeal proceedings by virtue of Article 184(1) thereof, the Member States which have intervened in the proceedings are to bear their own costs. Consequently, the French Republic, having participated in the proceedings before the Court of Justice, must bear its own costs.