1 By its appeal, the Council of the European Union asks the Court of Justice to set aside the judgment of the General Court of the European Union of 21 April 2021, El-Qaddafi v Council (T‑322/19, EU:T:2021:206; ‘the judgment under appeal’), by which the General Court annulled: - Council Implementing Decision (CFSP) 2017/497 of 21 March 2017 implementing Decision (CFSP) 2015/1333 concerning restrictive measures in view of the situation in Libya (OJ 2017 L 76, p. 25); - Council Implementing Decision (CFSP) 2020/374 of 5 March 2020 implementing Decision (CFSP) 2015/1333 concerning restrictive measures in view of the situation in Libya (OJ 2020 L 71, p. 14); - Council Implementing Regulation (EU) 2017/489 of 21 March 2017 implementing Article 21(5) of Regulation (EU) 2016/44 concerning restrictive measures in view of the situation in Libya (OJ 2017 L 76, p. 3); and - Council Implementing Regulation (EU) 2020/371 of 5 March 2020 implementing Article 21(5) of Regulation (EU) 2016/44 concerning restrictive measures in view of the situation in Libya (OJ 2020 L 71, p. 5), (together, ‘the acts at issue’), in so far as those acts concern Ms Aisha Muammer Mohamed El-Qaddafi (‘Ms El-Qaddafi’). Legal context and background to the dispute
2 The factual and legal context of the present case, as set out in paragraphs 1 to 27 of the judgment under appeal, may be summarised as follows. United Nations Security Council Resolution 1970 (2011)
3 On 26 February 2011, the United Nations Security Council (‘the Security Council’) adopted Resolution 1970 (2011), which introduced restrictive measures in respect of Libya and of persons and entities involved in serious human rights abuses against persons, including by being involved in attacks, in violation of international law, on civilian populations and facilities.
4 Paragraphs 15, 17, 22 and 24 of that resolution were worded as follows: ‘ The Security Council, … 15. Decides that all Member States shall take the necessary measures to prevent the entry into or transit through their territories of individuals listed in Annex I of this resolution or designated by the Committee established pursuant to paragraph 24 below, provided that nothing in this paragraph shall oblige a State to refuse its own nationals entry into its territory; … 17. Decides that all Member States shall freeze without delay all funds, other financial assets and economic resources which are on their territories, which are owned or controlled, directly or indirectly, by the individuals or entities listed in annex II of this resolution or designated by the Committee established pursuant to paragraph 24 below, or by individuals or entities acting on their behalf or at their direction, or by entities owned or controlled by them, and decides further that all Member States shall ensure that any funds, financial assets or economic resources are prevented from being made available by their nationals or by any individuals or entities within their territories, to or for the benefit of the individuals or entities listed in Annex II of this resolution or individuals designated by the Committee; … 22. Decides that the measures contained in paragraphs 15 and 17 shall apply to the individuals and entities designated by the Committee, pursuant to paragraph 24(b) and (c), respectively: (a) Involved in or complicit in ordering, controlling, or otherwise directing, the commission of serious human rights abuses against persons in the Libyan Arab Jamahiriya, including by being involved in or complicit in planning, commanding, ordering or conducting attacks, in violation of international law, including aerial bombardments, on civilian populations and facilities; or (b) Acting for or on behalf of or at the direction of individuals or entities identified in subparagraph (a). … 24. Decides to establish, in accordance with rule 28 of its provisional rules of procedure, a Committee of the Security Council consisting of all the members of the Council [(“the Committee” or “the Sanctions Committee”)], to undertake [the] following tasks: (a) To monitor implementation of the measures imposed in paragraphs 9, 10, 15, and 17; (b) To designate those individuals subject to the measures imposed by [paragraph] 15 … above; (c) To designate those individuals subject to the measures imposed by paragraph 17 above …’
5 The lists in Annexes I and II to that resolution, headed ‘Travel ban’ and ‘Asset freeze’, respectively, included the name of ‘Aisha Muammar Qadhafi’, describing her as the ‘daughter of Muammar Qadhafi’ and referring to the ‘closeness of [her] association with [the] regime’. European Union law Decision 2011/137/CFSP and Regulation (EU) No 204/2011
6 On 28 February 2011, the Council adopted Decision 2011/137/CFSP concerning restrictive measures in view of the situation in Libya (OJ 2011 L 58, p. 53).
7 Article 5(1) of that decision is worded as follows: ‘Member States shall take the necessary measures to prevent the entry into, or transit through, their territories of: (a) persons listed in Annex I to [Resolution] 1970 (2011) [of the Security Council], and additional persons designated by the Security Council or by the Committee in accordance with paragraph 22 of [Resolution] 1970 (2011), as listed in Annex I; …’
8 Article 6(1) of that decision provides: ‘All funds, other financial assets and economic resources, owned or controlled, directly or indirectly, by: (a) persons and entities listed in Annex II to [Resolution] 1970 (2011) [of the Security Council], and additional persons and entities designated by the Security Council or by the Committee in accordance with paragraph 22 of [Resolution] 1970 (2011), or by individuals or entities acting on their behalf or at their direction, or by entities owned or controlled by them, as listed in Annex III; …’
9 On 2 March 2011, the Council adopted Regulation (EU) No 204/2011 concerning restrictive measures in view of the situation in Libya (OJ 2011 L 58, p. 1).
10 Under Article 5(1) of that regulation: ‘All funds and economic resources belonging to, owned, held or controlled by the natural or legal persons, entities and bodies listed in Annexes II and III shall be frozen.’
11 Article 6(1) of that regulation provides: ‘Annex II shall include the natural or legal persons, entities and bodies designated by the … Security Council or by the Sanctions Committee in accordance with paragraph 22 of [Resolution] 1970 (2011).’
12 Ms El-Qaddafi’s name appears in Annexes I and III to Decision 2011/137 and in Annex II to Regulation No 204/2011 (‘the 2011 lists’) with the following identifying information and statement of reasons: ‘QADHAFI, Aisha Muammar Date of birth: 1978. Place of birth: Tripoli, Libya. Daughter of Muammar QADHAFI. Closeness of association with regime. Date of UN designation: 26 [February] 2011.’ Decisions 2013/45/CFSP and 2014/380/CFSP and Implementing Regulations (EU) No 50/2013 and (EU) No 689/2014
13 On 22 January 2013, by Decision 2013/45/CFSP amending Decision 2011/137 (OJ 2013 L 20, p. 60) and by Implementing Regulation (EU) No 50/2013 implementing Article 16(2) of Regulation No 204/2011 (OJ 2013 L 20, p. 29), and, on 23 June 2014, by Decision 2014/380/CFSP amending Decision 2011/137 (OJ 2014 L 183, p. 52) and by Implementing Regulation (EU) No 689/2014 implementing Article 16(2) of Regulation No 204/2011 (OJ 2014 L 183, p. 1), the Council maintained Ms El-Qaddafi’s name on the 2011 lists without changing the statement of reasons for her listing.
14 By its judgment of 28 March 2017, El-Qaddafi v Council (T‑681/14, not published, EU:T:2017:227), the General Court annulled Decision 2014/380 and Implementing Regulation No 689/2014 in so far as they maintained Ms El-Qaddafi’s name on the 2011 lists, on the ground, in essence, that the condition requiring the Council to notify her of the actual and specific reasons why it considered that the restrictive measures had to be maintained against her was not satisfied in that instance. Decision (CFSP) 2015/818 and Regulation (EU) 2015/813
15 On 4 May 2015, the Council sent a letter to Ms El-Qaddafi’s representatives together with a set of documents (‘the letter of 4 May 2015’), in which the Council noted that, in the course of 2011 and 2013, Ms El-Qaddafi had made public statements calling for the overthrow of the Libyan authorities established following the fall of her father’s regime, and for revenge for his death (‘the statements at issue’).
16 On 26 May 2015, the Council adopted Decision (CFSP) 2015/818 amending Decision 2011/137 (OJ 2015 L 129, p. 13) and Regulation (EU) 2015/813 amending Regulation No 204/2011 (OJ 2015 L 129, p. 1) with the aim, inter alia, of expanding the criteria for the designation of persons and entities to be subject to the restrictive measures set out in Decision 2011/137 and in Regulation No 204/2011 (‘the 2011 acts’). Decision (CFSP) 2015/1333 and Regulation (EU) 2016/44
17 Following a review of the 2011 lists, the Council adopted Decision (CFSP) 2015/1333 of 31 July 2015 concerning restrictive measures in view of the situation in Libya, and repealing Decision 2011/137 (OJ 2015 L 206, p. 34), and Regulation (EU) 2016/44 of 18 January 2016 concerning restrictive measures in view of the situation in Libya and repealing Regulation No 204/2011 (OJ 2016 L 12, p. 1).
18 Under Article 8(1) of Decision 2015/1333: ‘Member States shall take the necessary measures to prevent the entry into, or transit through, their territories of persons designated and subjected to travel restrictions by the Security Council or by the [Sanctions] Committee in accordance with paragraph 22 of [Resolution] 1970 (2011) …, as listed in Annex I.’
19 Article 9(1) of that decision provides: ‘All funds, other financial assets and economic resources, owned or controlled, directly or indirectly, by persons and entities designated and subjected to an asset freeze by the Security Council or by the [Sanctions] Committee in accordance with paragraph 22 of [Resolution] 1970 (2011) …, as listed in Annex III, shall be frozen.’
20 Article 5(1) of Regulation 2016/44 provides: ‘All funds and economic resources belonging to, owned, held or controlled by the natural or legal persons, entities and bodies listed in Annexes II and III shall be frozen.’
21 Under Article 6(1) of that regulation: ‘Annex II shall include the natural or legal persons, entities and bodies designated by the Security Council or by the Sanctions Committee in accordance with paragraph 22 of [Resolution] 1970 (2011) …’
22 Annex I to Decision 2015/1333, headed ‘List of persons referred to in Article 8(1)’, Annex III to that decision, headed ‘List of persons and entities referred to in Article 9(1)’, and Annex II to Regulation 2016/44, headed ‘List of natural and legal persons, entities or bodies referred to in Article 6(1)’ (‘the lists at issue’), include the name of Ms El-Qaddafi, together with the following identifying information and statement of reasons: ‘Name: Aisha Muammar Muhammed Abu Minyar Qadhafi … [Date of birth]: 1978[.] [Place of birth]: Tripoli, Libya[.] Good quality a.k.a.: Aisha Muhammed Abdul Salam … Address: Sultanate of Oman (Believed status/location: Sultanate of Oman)[.] Listed on: 26 [February] 2011[.] Other information: Listed pursuant to paragraphs 15 and 17 of resolution 1970 [(2011)] (Travel Ban, Asset Freeze). Additional information Closeness of association with regime. Travelled in violation of paragraph 15 of resolution 1970 [(2011)], as described by the Panel of Experts on Libya in its 2013 Interim Report.’ Implementing Decision 2017/497 and Implementing Regulation 2017/489
23 By Implementing Decision 2017/497 and Implementing Regulation 2017/489 (‘the 2017 acts’), the Council maintained Ms El-Qaddafi’s name on the lists at issue with the following identifying information and statement of reasons: ‘Name: … Aisha […] Muammar Muhammed […] Abu Minyar […] Qadhafi … [Date of birth]: 1978[.] [Place of birth]: Tripoli, Libya[.] Good quality a.k.a.: Aisha Muhammed Abdul Salam … Address: Sultanate of Oman (Believed status/location): Sultanate of Oman)[.] Listed on: 26 [February] 2011 (amended on 11 [November] 2016, 26 [September] 2014, 21 [March] 2013, 2 [April] 2012[.] Other information: Listed pursuant to paragraphs 15 and 17 of resolution 1970 [(2011)] (Travel Ban, Asset Freeze). INTERPOL-[Security Council] Special Notice web link: https://www.interpol.int/fr/notice/search/un/5525815’.
24 On 25 March 2019, the Council informed Ms El-Qaddafi that it had adopted the 2017 acts to take account of information that had been updated by the Sanctions Committee, the committee established pursuant to paragraph 24 of Resolution 1970 (2011). Implementing Decision 2020/374 and Implementing Regulation 2020/371
25 Subsequently, the Council adopted Implementing Decision 2020/374 and Implementing Regulation 2020/371 (‘the 2020 acts’), by which Ms El-Qaddafi’s name was maintained on the lists at issue, in essence for the same reasons as those set out in the 2017 acts. The procedure before the General Court and the judgment under appeal
26 By application lodged at the General Court Registry on 27 May 2019, Ms El-Qaddafi brought an action against the 2017 acts in so far as they maintained her name on the lists at issue, relying on four pleas in law, alleging (i) infringement of essential procedural requirements relating to the right to effective judicial protection; (ii) breach of the principles of res judicata and legal certainty and of the right to an effective remedy; (iii) an inadequate statement of reasons for those acts and lack of a factual basis for maintaining her name on those lists; and (iv) disproportionate infringement of her fundamental rights.
27 By separate document lodged at the General Court Registry on 1 September 2020, Ms El-Qaddafi applied to modify her application so as also to seek annulment of the 2020 acts in so far as they maintained her name on those lists.
28 By the judgment under appeal, the General Court confined itself to examining the third plea in law and annulled the acts at issue in so far as they maintained Ms El-Qaddafi’s name on the lists at issue.
29 As regards the first part of that plea, alleging a failure to state reasons for the acts at issue, the General Court rejected that part of the plea, in paragraphs 81 to 89 of the judgment under appeal, on the ground, in essence, that the information set out in those acts, together with other information provided by the Council, was sufficient to enable Ms El-Qaddafi to understand why her name had been maintained on those lists and to prepare to challenge those acts.
30 By contrast, the General Court held, in paragraphs 104 to 117 of the judgment under appeal, that the second part of that plea, alleging that there was no factual basis for the retention of Ms El-Qaddafi’s name on those lists, was well founded.
31 The General Court considered that the information, ‘listed pursuant to paragraphs 15 and 17 of Resolution 1970 (2011) (Travel Ban, Asset Freeze)’, in the acts at issue did not make it possible to understand the individual, specific and concrete reasons why Ms El-Qaddafi’s name had been maintained on the lists at issue. The General Court added that the Council had merely referred to the information communicated to Ms El-Qaddafi in the letter of 4 May 2015, in particular the information concerning the statements at issue, without explaining how that information was still up to date when the acts at issue were adopted. Although there had been changes in Ms El-Qaddafi’s individual situation since the adoption of the 2011 acts, as she had ceased to reside in Libya and the file did not mention any participation on her part in Libyan political life or statements other than the statements at issue, the Council had not explained why she still represented a threat to international peace and security in the region in 2017 and 2020.
32 Lastly, by the judgment under appeal, the General Court maintained the effects of Article 1 of Implementing Decision 2020/374 in respect of Ms El-Qaddafi until the date of expiry of the period for bringing an appeal, as provided for in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union or, if an appeal was brought within that period, until the date of any dismissal of that appeal. The procedure before the Court of Justice and the forms of order sought
33 The Council claims that the Court should: - set aside the judgment under appeal; - give final judgment in the matters that are the subject of the present appeal and dismiss the action brought by Ms El-Qaddafi; and - order Ms El-Qaddafi to pay the costs of the present appeal and of the case that gave rise to the judgment under appeal.
34 Ms El-Qaddafi contends that the Court should: - dismiss the appeal in its entirety; - dismiss the Council’s alternative claim that the effects of the 2020 acts should be maintained for a period of three months; - declare the annulment of the acts at issue ex tunc ; and - order the Council to pay the costs incurred in the present appeal and in the case that gave rise to the judgment under appeal.
35 By decision of the President of the Court of 13 December 2021, the French Republic was granted leave to intervene in support of the form of order sought by the Council. The appeal
36 The Council puts forward four grounds of appeal, alleging (i) infringement of the obligation to state reasons and misinterpretation of Decision 2015/1333; (ii) misinterpretation of that decision and of Regulation 2016/44; (iii) distortion of its arguments, misinterpretation of that decision and of that regulation, breach of the principle that pleadings are to be construed in accordance with their actual terms and infringement of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’); and (iv) distortion of the evidence and infringement of Article 263 TFEU, of Article 47 of the Charter, of the obligation to state reasons and of the principle that documents and pleadings are to be construed in accordance with their actual terms. The first ground of appeal Arguments of the parties
37 By the first part of its first ground of appeal, the Council submits that the General Court infringed Article 47 of the Charter and Article 36 of the Statute of the Court of Justice of the European Union, read in conjunction with the first paragraph of Article 53 thereof, since it did not fulfil its obligation to state reasons, paragraph 109 of the judgment under appeal and paragraphs 87 and 88 of that judgment being contradictory as regards the question whether Ms El-Qaddafi was able to understand why her name was maintained on the lists at issue.
38 By the second part of this ground of appeal, the Council submits that the General Court erred in law by rejecting, without justification, its important argument, summarised in paragraph 97 of the judgment under appeal, that the Council took into consideration, as can be inferred from recital 3 of Decision 2015/1333, the fact that a threat continued to be posed to the peace, stability or security of Libya and the successful completion of its political transition, inter alia through the exacerbation of current divisions by persons and entities identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi in Libya or otherwise formerly associated with that regime.
39 By the third part of that ground of appeal, the Council maintains that the General Court misinterpreted Decision 2015/1333 in paragraphs 108 and 109 of that judgment, since those paragraphs were based on the assumption that the Council had refrained from carrying out any assessment of Ms El-Qaddafi’s situation since her initial inclusion on the 2011 lists. Contrary to the General Court’s assumption, the last review of Ms El-Qaddafi’s situation did not date back to 2011, since Decision 2015/1333 was adopted after a thorough review and is not, therefore, a mere consolidation of Decision 2011/137. That review had been triggered by the significant events that took place in Libya in 2015 and had covered the individual situation of persons such as Ms El-Qaddafi, formerly associated with the regime of Muammar Qadhafi; at the end of that review, the Council had concluded that those persons continued to pose a threat to the peace, stability or security of Libya and the successful completion of its political transition.
40 Ms El-Qaddafi contends that the first ground of appeal is unfounded in its entirety. Findings of the Court
41 As regards the first part of the first ground of appeal, by which it is alleged that the judgment under appeal is vitiated by contradictory reasoning, it should be borne in mind that, according to the settled case-law of the Court of Justice, the obligation to state reasons requires the General Court to clearly and unequivocally disclose the reasoning followed by it in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review (judgment of 16 July 2020, Inclusion Alliance for Europe v Commission , C‑378/16 P, EU:C:2020:575, paragraph 95 and the case-law cited).
42 Contradictory or unintelligible reasoning in a judgment of the General Court amounts to a failure to state reasons (see, to that effect, judgment of 27 October 2016, Debonair Trading Internacional v EUIPO , C‑537/14 P, not published, EU:C:2016:814, paragraph 36).
43 In the present case, on the one hand, the General Court held, in paragraphs 87 and 88 of the judgment under appeal, that ‘[Ms El-Qaddafi] was able to understand that her name had been maintained on the lists at issue because of her listing pursuant to paragraphs 15 and 17 of Resolution 1970 (2011), [the statements at issue], which are part of the context in which the [acts at issue] were adopted, and the fact that the Council considered those measures still to be necessary’, and that ‘the information set out in [those] acts … was therefore sufficient to enable the applicant to form a view as to the lawfulness of [those] acts and to prepare to challenge them, which she was properly able to do in the present case’. On the other hand, the General Court found, in paragraph 109 of that judgment, that ‘the information, “listed pursuant to paragraphs 15 and 17 of Resolution 1970 (2011) (Travel Ban, Asset Freeze)”, does not make it possible to understand the individual, specific and concrete reasons why [Ms El-Qaddafi’s] name was maintained on [those lists] on 21 March 2017 and 5 March 2020’.
44 Paragraphs 87 and 88 of the judgment under appeal are part of the examination of the first part of the third plea at first instance, alleging a failure to state reasons for the acts at issue, whereas paragraph 109 of that judgment concerns the examination of the second part of that plea, alleging an insufficiently solid factual basis.
45 In that regard, it must be borne in mind that, according to settled case-law, 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).
46 The words ‘does not make it possible to understand the individual, specific and concrete reasons why [Ms El-Qaddafi’s] name was maintained on the lists at issue’, used by the General Court in paragraph 109 of the judgment under appeal, are reserved for verification of compliance with the obligation to state reasons for the acts at issue. However, as is apparent from the preceding paragraph of the present judgment, in order to examine whether those acts have a sufficiently solid factual basis, it is necessary to ensure that the summary of reasons underpinning them is substantiated (see, to that effect, judgment 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, paragraphs 116 and 119 and the case-law cited).
47 Nevertheless, although the wording of paragraphs 87 and 88 of the judgment under appeal appears, prima facie, to contradict that of paragraph 109 of that judgment, it should be noted that, in so far as paragraphs 87 and 88 appear in the General Court’s response to the first part of the third plea, alleging that the statement of reasons for the acts is inadequate, paragraphs 87 and 88 must be read as meaning that the General Court considered the Council to have fulfilled its obligation to disclose its reasoning clearly and unequivocally. By contrast, paragraph 109 of the judgment under appeal, which is in the response to the second part of that third plea, must be understood, together with paragraphs 110 to 116 of that judgment, as meaning that the General Court intended to point out that the Council had not fulfilled its obligation to establish, by providing detailed and individual particulars attesting to the genuineness of the threats that Ms El-Qaddafi posed to international peace and security in the region, that the reasons for maintaining her name on the lists at issue were well founded.
48 In those circumstances, the Council cannot complain that the General Court’s judgment under appeal is vitiated by contradictory reasoning.
49 In so far as, by the second part of that plea, the Council criticises the General Court for having rejected, without providing any justification, its arguments as set out in paragraph 97 of the judgment under appeal, it is apparent from settled case-law that the obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one-by-one all the arguments put forward by the parties to the case; the General Court’s reasoning may therefore be implicit on condition that it enables the persons concerned to know why it has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (judgment of 17 September 2020, Rosneft and Others v Council , C‑732/18 P, not published, EU:C:2020:727, paragraph 115 and the case-law cited).
50 Paragraph 109 of the judgment under appeal, read in conjunction with paragraph 110 thereof, enables the Council to understand the reasons why the General Court found that the Council had failed to establish in what respect Ms El-Qaddafi represented a threat to international peace and security in the region in 2017 and 2020 and, therefore, the reasons why it rejected, implicitly, the Council’s arguments set out in paragraph 97 of that judgment.
51 As regards the third part of the first ground of appeal, it should be noted that this is based on a misreading of the judgment under appeal.
52 Contrary to what is claimed by the Council, it is not apparent from paragraphs 108 and 109 of the judgment under appeal that the General Court proceeded on the assumption that the Council had refrained from carrying out any assessment of Ms El-Qaddafi’s situation since the initial inclusion of her name on the 2011 lists. In fact, it is apparent from paragraphs 107 to 116 of that judgment that the General Court found that the Council had failed to establish that there was a sufficiently solid factual basis for maintaining her name on the lists at issue in 2017 and 2020.
53 Furthermore, the General Court cannot be criticised for having held, in paragraph 108 of the judgment under appeal, that Decision 2015/1333 and Regulation 2016/44 had been adopted ‘with the aim of consolidating into new legal instruments the restrictive measures imposed by the 2011 acts’. It is clear from that wording that the General Court took account of the fact that Decision 2015/1333 and Regulation 2016/44 were new legal instruments that repealed the 2011 acts and that Ms El-Qaddafi’s name had been included on the lists at issue by that decision and that regulation rather than being maintained on the 2011 lists. Moreover, the General Court itself stated, in paragraphs 15 and 16 of that judgment, that that decision and that regulation had been adopted following a full review of those lists.
54 It follows that the first ground of appeal must be rejected in its entirety. The second ground of appeal Arguments of the parties
55 By the first part of its second ground of appeal, the Council claims that the General Court infringed Article 8(1) and Article 9(1) of Decision 2015/1333 and Article 6(1) of Regulation 2016/44, paragraph 109 of the judgment under appeal being based on an erroneous interpretation of the legal basis for the retention, by the acts at issue, of Ms El-Qaddafi’s name on the lists at issue. It is claimed that the General Court did not pay any attention, first, to the annexes to Resolution 1970 (2011) - to which reference is made in paragraphs 15 and 17 of that resolution - which specify that Ms El-Qaddafi is the daughter of Muammar Qadhafi and that she was closely associated with the regime, or, secondly, to paragraph 22 of that resolution, which is expressly mentioned in Decision 2015/1333 and in Regulation 2016/44 and which specifies the individuals to whom the measures envisaged in paragraphs 15 and 17 are to apply.
56 By the second part of that ground of appeal, the Council submits that the General Court erred in law when it referred, in paragraphs 110 and 115 of the judgment under appeal, to the risk which Ms El-Qaddafi posed to ‘international peace and security in the region’, since that criterion does not exist in the legal basis for including a name in the lists at issue. Furthermore, recital 4 of that regulation, cited by the General Court, does not concern the criteria against which the legality of individual listings should be assessed.
57 According to the Council, the General Court should have assessed the relevance of maintaining that name on those lists against the designation criterion defined in paragraph 22 of Resolution 1970 (2011). It is apparent from the judgment of 16 November 2011, Bank Melli Iran v Council (C‑548/09 P, EU:C:2011:735, paragraph 104 and the case-law cited), that account must be taken of the wording and purpose of a Security Council resolution when interpreting the regulation which seeks to implement that resolution. According to the Council, the retention of Ms El-Qaddafi’s name clearly meets that criterion since, owing to the statements at issue, Ms El-Qaddafi can be regarded as an individual who orders or otherwise directs the commission of serious human rights abuses against persons in Libya.
58 According to Ms El-Qaddafi, the second ground of appeal is unfounded in its entirety. Findings of the Court
59 As regards the first part of the second ground of appeal, it must be held that this is based on a misreading of the judgment under appeal.
60 Contrary to what is claimed by the Council, the fact that, in paragraph 109 of that judgment, the General Court cited the reasons concerning Ms El-Qaddafi set out in the lists at issue, namely the fact that she is ‘listed pursuant to paragraphs 15 and 17 of Resolution 1970 (2011)’, does not mean that it failed to take account of the annexes to that resolution and paragraph 22 thereof when it considered whether there was a sufficiently solid factual basis for maintaining her name on those lists by the acts at issue.
61 On the contrary, in paragraphs 106 and 107 of the judgment under appeal, the General Court indicated that, while Ms El-Qaddafi had initially been entered on the 2011 lists on the ground that she was Muammar Qadhafi’s daughter and was closely associated with the regime, grounds which correspond to those set out in the annexes to Resolution 1970 (2011), the Council was required to establish that the retention of her name on the lists at issue had a sufficiently solid factual basis. Moreover, it should be noted that paragraphs 15 and 17 of Resolution 1970 (2011), which the General Court took into consideration in its examination of the sufficiently solid factual basis for that retention, refer expressly to those annexes.
62 Similarly, the General Court recalled, in paragraph 108 of that judgment, that the 2011 acts had been adopted ‘against persons and entities involved in serious human rights abuses against persons in Libya, including by being involved in attacks, in violation of international law, on civilian populations and facilities’, which corresponds, in essence, to the designation criteria referred to in paragraph 22 of Resolution 1970 (2011).
63 Consequently, the Council’s argument that paragraph 109 of the judgment under appeal is based on an erroneous interpretation of the legal basis for the retention, by the acts at issue, of Ms El-Qaddafi’s name on the lists at issue is unfounded.
64 By the second part of the second ground of appeal, the Council submits, in essence, that the General Court erred in law in that it tried to determine, in paragraphs 110 and 115 of the judgment under appeal, whether Ms El-Qaddafi still represented a threat to international peace and security in the region at the time when the acts at issue were adopted, instead of relying on the designation criteria in paragraph 22 of that resolution.
65 In that regard, it should be noted that, regarding acts which continue to include a person in the lists relating to the freezing of funds, such as the lists at issue, it is apparent from settled case-law that 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, 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 (see, to that effect, judgment of 22 April 2021, Council v PKK , C‑46/19 P, EU:C:2021:316, paragraph 52 and the case-law cited).
66 Furthermore, as is apparent from paragraphs 60 to 63 of the present judgment, it follows from the context of paragraphs 110 and 115 of the judgment under appeal that the General Court did not rely on an incorrect criterion in order to determine the legality of the acts at issue with regard to the decision to maintain Ms El-Qaddafi’s name on those lists in March 2017 and March 2020.
67 That is, moreover, borne out by the fact that the General Court found, in paragraph 114 of that judgment, that several years had elapsed since those statements had been reported in the press and brought to the attention of the Council, ‘yet the Council [had] not [given] the slightest indication as to why the content of those statements might have shown that [Ms El-Qaddafi] still represented a threat subject to sanctions within the framework of the objectives of Resolution 1970 (2011), notwithstanding the intervening changes in relation to her individual situation’.
68 In that regard, it is sufficient to recall, first, that, in the event of challenge, it is the task of the competent EU authority to establish that the reasons relied on against the person concerned are well founded and, secondly, that for that purpose, it is necessary that the information or evidence produced should support the reasons relied on against the person concerned (judgment 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, paragraphs 121 and 122).
69 It must be noted, however, that the Council failed to meet those requirements. Indeed, given, first, the considerable amount of time that elapsed between the statements at issue that served as the basis for Ms El-Qaddafi’s initial inclusion in the lists at issue, and the adoption of the acts at issue and, secondly, the changes in her individual situation, the Council’s decision to maintain Ms El-Qaddafi’s name on those lists in 2017 and 2020, on the sole basis of the matters noted by the General Court in paragraph 110 of the judgment under appeal, particularly those statements, without the Council having explained in what respect those matters were still current at the time when those acts were adopted, did not constitute a sufficient basis for those acts (see, to that effect, by analogy, judgment of 26 July 2017, Council v LTTE , C‑599/14 P, EU:C:2017:583, paragraph 85).
70 It follows that the second ground of appeal must be rejected as unfounded. The third ground of appeal Arguments of the parties
71 By the first part of the third ground of appeal, the Council maintains that, in paragraph 113 of the judgment under appeal, the General Court distorted its arguments and infringed the principle that pleadings are to be construed in accordance with their actual terms, by wrongly attributing to the Council the assertion that it was not required to state the reasons why the information that had been brought to its attention was up to date in 2017 and 2020. The Council contends that it merely stated, in response to an argument put forward by Ms El-Qaddafi, that it could rely on the information contained in the letter of 4 May 2015 when it adopted the contested acts.
72 By the second part of that ground of appeal, it is alleged that the General Court, again in paragraph 113, misconstrued Decision 2015/1333 and Regulation 2016/44 and infringed Article 47 of the Charter. It does not follow from that decision or regulation, or from the obligation under Article 47 of the Charter to ensure that a decision to adopt or maintain restrictive measures has a sufficiently solid factual basis, that the Council has a positive obligation to specify the reasons why the information on which it relies in order to substantiate the grounds for including a person or entity on a list of persons and entities subject to restrictive measures is up to date at the time of the adoption of the decision to maintain the name of that person or entity on such a list.
73 According to Ms El-Qaddafi, the third ground of appeal is inadmissible since the first and second parts of the third ground of appeal are contradictory. The Council argues, on the one hand, that it did not assert that it was not required to state the reasons why the information that had been brought to its attention was up to date in 2017 and 2020 in order to justify maintaining Ms El-Qaddafi’s name on the lists at issue and, on the other, that it is not bound by a positive obligation to specify those reasons. In any event, this ground of appeal is unfounded. Findings of the Court
74 It should be noted, without it being necessary to rule on Ms El-Qaddafi’s arguments concerning the inadmissibility of the third ground of appeal, first, that the first part of that ground of appeal is based on a misreading of the judgment under appeal, since it does not at all follow from paragraph 113 of that judgment that the General Court attributed to the Council the assertion that it was not required to state the reasons why the information that had been brought to its attention was still up to date in 2017 and 2020. In fact, that paragraph, read in conjunction with paragraph 112 of that judgment, contains the assertion that the rejection of Ms El-Qaddafi’s argument alleging breach of the principle of res judicata had no bearing on the Council’s obligation to state those reasons so as to justify maintaining her name on the lists at issue.
75 Secondly, as regards the second part of that ground of appeal, it should be recalled that the Council may maintain a person on the list concerned if it concludes that the reason for the initial listing is ongoing and that, to that end, the Council is required to verify whether, since that 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. Moreover, in view of the passage of time and in the light of changes in the circumstances of the case, the Council may be obliged to base the retention of that person on the list on an up-to-date assessment of the situation, and to take into account more recent facts which demonstrate that that reason still obtains (see to that effect, by analogy, judgments of 26 July 2017, Council v LTTE , C‑599/14 P, EU:C:2017:583, paragraph 54 and the case-law cited, and of 22 April 2021, Council v PKK , C‑46/19 P, EU:C:2021:316, paragraphs 49 and 51 and the case-law cited).
76 It is apparent from the case-law arising from the judgments referred to in the preceding paragraph of the present judgment that, in order to maintain Ms El-Qaddafi’s name on the lists at issue, the Council was required to verify whether the information on which it had relied during the last review was unchanged or whether, on the other hand, the factual situation had changed in such a way that it was no longer possible to draw the same conclusion, so that it had to base that retention on an up-to-date assessment of the situation, and to take into account more recent facts.
77 It follows that the General Court cannot be criticised for having held, in paragraph 113 of the judgment under appeal, that the Council was required to state the reasons why the information that had been brought to its attention before the date on which the acts at issue were adopted was still up to date at the time of their adoption.
78 In the light of the foregoing, the third ground of appeal must be rejected as unfounded. The fourth ground of appeal Arguments of the parties
79 By the first part of its fourth ground of appeal, the Council submits that the General Court distorted the evidence and infringed the principle that documents and pleadings are to be construed in accordance with their actual terms in so far as it relied, in paragraph 115 of the judgment under appeal, on the changes in Ms El-Qaddafi’s individual situation concerning her place of residence and her alleged lack of participation in Libyan political life in order to rule that the Council had not demonstrated that she still represented a threat to international peace and security in the region in 2017 and 2020.
80 First, in the Council’s submission, the fact that Ms El-Qaddafi had ceased to reside in Libya since her inclusion on the 2011 lists is irrelevant because the acts at issue were based on facts which took place after that listing, that is to say, on the statements at issue. Moreover, Ms El-Qaddafi had left Libya for Algeria in August 2011. Therefore, the General Court could not properly consider her departure from Libya to be a change which intervened in her individual situation after Decision 2015/1333 and Regulation 2016/44. That departure also took place before the facts on which the Council relied for the adoption of those acts at issue, Ms El-Qaddafi’s first statement having been made in September 2011.
81 Secondly, as regards Ms El-Qaddafi’s participation in Libyan political life, the Council submits that the General Court should have taken full account of the note verbale from the Omani authorities of 9 June 2015 (‘the note verbale from the Omani authorities’), which showed why Ms El-Qaddafi still represented a threat to the peace, stability or security of Libya and to the successful completion of its political transition. According to the Council, it follows from that note verbale that the authorisation for Ms El-Qaddafi to reside in Oman had been made conditional on her undertaking not to engage in political activities. Similarly, the Council observes that the Omani authorities had determined that her residence in Oman rather than in the immediate proximity of Libya ‘would serve to de-escalate tensions in the region’ and, therefore, that that note verbale clearly did not constitute exculpatory evidence that would have justified not maintaining her name on the lists at issue.
82 The second part of the fourth ground of appeal alleges an infringement of the obligation to state reasons under Article 36 of the Statute of the Court of Justice of the European Union, read in conjunction with the first paragraph of Article 53 thereof, in that the General Court failed to respond to the Council’s argument that the note verbale from the Omani authorities showed that Ms El-Qaddafi still represented a threat.
83 By the third part of that ground of appeal, the Council maintains that the General Court disregarded the criteria resulting from the case-law of the Court of Justice concerning the effect of the passage of time on the relevance of the facts relied on by the Council. It is apparent from the judgment 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), that it is conceivable that facts dating back ten years might be deemed sufficient to justify the initial inclusion of a person’s name on a list of persons subject to restrictive measures. As it is, in this case, the time span between the facts attributed to Ms El-Qaddafi and the acts at issue was only four and seven years respectively.
84 By the fourth part of that ground of appeal, the Council submits that the General Court infringed Article 263 TFEU and Article 47 of the Charter by relying, in paragraph 115 of the judgment under appeal, on the fact that Ms El-Qaddafi no longer resided in Libya when she made the statements at issue and inferring from this that the Council had not explained the reason why the retention of her name on the lists at issue was still justified, even though she did not put forward any argument to that effect. It could be inferred from the judgment of 26 January 2017, Duravit and Others v Commission (C‑609/13 P, EU:C:2017:46, paragraphs 30 to 33), that the review of legality to be carried out by the Courts of the European Union in accordance with Article 263 TFEU is delimited by the pleas and arguments raised by the applicant.
85 Ms El-Qaddafi contends that the fourth ground of appeal is inadmissible. First of all, by the first two parts of that ground of appeal, the Council reiterates, contrary to Article 58 of the Statute of the Court of Justice of the European Union, a number of arguments concerning the note verbale from the Omani authorities that were previously relied on at first instance and rejected by the General Court, so that the Council should be regarded as seeking in reality a re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake.
86 Next, as regards the third part of that ground of appeal, Ms El-Qaddafi submits that the Council’s argument that the General Court erred in law by disregarding the criteria resulting from the case-law concerning the effect of the passage of time on the relevance of the facts relied on by the Council has been raised for the first time at the appeal stage.
87 Lastly, in the fourth part of that ground of appeal, the Council misconstrued the General Court’s findings of fact in paragraph 115 of that judgment, since, contrary to what is claimed by the Council, the General Court did not indicate that the statements at issue were made by Ms El-Qaddafi while she was in Libya, so as to constitute a change in circumstances. In any event, the fourth ground of appeal is, it is contended, unfounded. Findings of the Court - Admissibility
88 First of all, as regards the first two parts of the fourth ground of appeal, it must be borne in mind that an appeal which confines itself to reproducing the pleas in law and arguments previously submitted to the General Court amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake. However, provided that the appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal (see, to that effect, judgment of 24 March 2022, Hermann Albers v Commission , C‑656/20 P, not published, EU:C:2022:222, paragraphs 35 and 36 and the case-law cited).
89 In the present case, by those parts, the Council maintains in particular, first, that the General Court distorted the evidence in so far as it relied on the changes in Ms El-Qaddafi’s individual situation concerning her alleged lack of participation in Libyan political life in order to rule that the Council had not demonstrated that she still represented a threat to international peace and security in the region in 2017 and 2020, when it would have been appropriate, in that respect, to take account of the note verbale from the Omani authorities, and, secondly, that the General Court infringed the obligation to state reasons by failing to respond to the Council’s argument that that note verbale showed that Ms El-Qaddafi still represented such a threat.
90 Thus, contrary to Ms El-Qaddafi’s submissions concerning those parts of the ground of appeal, the Council has not confined itself to reproducing the pleas in law and arguments which it previously submitted to the General Court, since it criticises the errors of law by which, it claims, paragraph 115 of the judgment under appeal is vitiated.
91 Next, as regards the third part of the fourth ground of appeal, it should be recalled that, in an appeal, the Court of Justice’s jurisdiction is confined to a review of the findings of law on the pleas and arguments argued before the General Court. By contrast, arguments which are intended to challenge in detail the General Court’s interpretation and application of EU law do not constitute a new plea whose introduction at the appeal stage would be prohibited (see, to that effect, judgment of 15 July 2021, DK v EEAS , C‑851/19 P, EU:C:2021:607, paragraphs 35 and 36).
92 In the present case, contrary to Ms El-Qaddafi’s contention, the Council is, by that part of the ground of appeal, challenging in detail the General Court’s application of the case-law arising from the judgment 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) concerning the effect of the passage of time on the relevance of the facts on which it relies, so that the arguments thus raised do not constitute a new plea whose introduction at the appeal stage would be prohibited.
93 Lastly, in so far as Ms El-Qaddafi maintains that the fourth part of the fourth ground of appeal is based on a misreading of the judgment under appeal, it must be held that that argument falls within the scope of the substantive assessment of the present case (see, to that effect, judgment of 22 December 2022, Parliament v Moi , C‑246/21 P, not published, EU:C:2022:1026, paragraph 71).
94 It follows from the foregoing that the fourth ground of appeal is admissible in its entirety. - Substance
95 By the first part of the fourth ground of appeal, the Council argues that the General Court distorted the evidence and infringed the principle that documents and pleadings are to be construed in accordance with their actual terms in so far as it relied, in paragraph 115 of the judgment under appeal, on alleged changes in Ms El-Qaddafi’s individual situation concerning her place of residence and her participation in political life in order to rule that the Council had not demonstrated that she still represented a threat to international peace and security in the region in 2017 and 2020.
96 In that regard, it is apparent from Article 256 TFEU and from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal is to be limited to points of law. Accordingly, the General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts or evidence are distorted, constitute points of law subject, as such, to review by the Court of Justice in the examination of an appeal. Such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (judgment of 22 December 2022, Parliament v Moi , C‑246/21 P, not published, EU:C:2022:1026, paragraph 84 and the case-law cited).
97 However, first, although the Council maintains that the General Court could not properly consider Ms El-Qaddafi’s departure from Libya to be a change which intervened in her individual situation after the adoption of Decision 2015/1333 and Regulation 2016/44, since she had left that country for Algeria in August 2011, that argument is based on a misreading of the judgment under appeal. It is apparent from paragraph 115 of that judgment that the General Court merely found that Ms El-Qaddafi’s situation had changed in so far as, since the adoption of the 2011 acts, she had ceased to reside in Libya, which corresponds moreover to the facts of this case since, as the Council itself stated, Ms El-Qaddafi left Libya in August 2011, that is to say, after the adoption of the 2011 acts.
98 Secondly, the Council is wrong to complain that the General Court distorted the evidence in so far as it found, in paragraph 115 of the judgment under appeal, that the file did not mention any participation by Ms El-Qaddafi in Libyan political life or statements other than the statements at issue, whereas the note verbale from the Omani authorities had shown that she still represented a threat to the peace, stability or security of Libya and to the successful completion of its political transition in 2017 and 2020.
99 It is in fact apparent from that note verbale , first, that the Omani authorities determined that Ms El-Qaddafi’s residence in Oman rather than in the immediate proximity of Libya would serve to de-escalate tensions in the region and to avoid potential risks to its security and, secondly, that she complied in all respects with her undertaking not to engage in political activities in Libya while resident in Oman.
100 Thus, contrary to what is claimed by the Council, it cannot be inferred from that note verbale that Ms El-Qaddafi continued to participate in Libyan political life or that she had made statements other than the statements at issue.
101 In any event, the Council’s reading of that note verbale from the Omani authorities as showing that Ms El-Qaddafi represented a threat to the peace, stability or security of Libya in 2017 and 2020 does not appear, contrary to what is required by the case-law set out in paragraph 96 of the present judgment, to be obvious from that note verbale without there being any need to carry out a new assessment of the facts and the evidence.
102 Furthermore, in so far as the Council maintains that the note verbale from the Omani authorities does not constitute exculpatory evidence that would have justified the non-retention of Ms El-Qaddafi’s name on the lists at issue, it is sufficient to recall, as is apparent from the case-law cited in paragraph 68 of the present judgment, that it is the task of the competent EU authority to establish that the reasons relied on against the person concerned are well founded, so that the Council must provide reasons for maintaining a person’s name on a list of persons subject to restrictive measures, not when it wishes not to maintain that name on such a list.
103 In the light of the foregoing, the first part of the fourth ground of appeal is unfounded.
104 As regards the second part of that ground of appeal, alleging, in essence, infringement of the obligation to state reasons, in that the General Court failed to respond to the Council’s argument that the note verbale from the Omani authorities showed that Ms El-Qaddafi still represented a threat to international peace and security in the region in 2017 and 2020, suffice it to note that, in accordance with the case-law set out in paragraphs 41 and 49 of the present judgment, the General Court indicated with sufficient clarity in paragraph 115 of the judgment under appeal that the General Court’s file, which included that note verbale , did not mention any participation by Ms El-Qaddafi in Libyan political life and that, despite that fact, the Council did not explain why she still represented such a threat.
105 As regards the third part of that ground of appeal, the General Court cannot be said to have disregarded the case-law of the Court of Justice resulting from the judgment 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) in so far as it ruled that the statements at issue were not sufficient to justify maintaining Ms El-Qaddafi’s name on the lists at issue by means of the acts at issue. In fact, and while the Council infers from that case-law that those statements still had to be regarded as relevant facts in 2017 and 2020 since the time span between those statements and the 2017 and 2020 acts was only four and seven years respectively, it is sufficient to note that it follows from that case-law only that it is conceivable that facts dating back ten years might be deemed sufficient to justify the initial inclusion of a name on a list of persons subject to restrictive measures, and that that assessment must be made taking into account the specific circumstances of each case (see, to that effect, judgment of 3 December 2020, Saleh Thabet and Others v Council , C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992, paragraph 33). In paragraphs 110 to 116 of the judgment under appeal, the General Court assessed the particular circumstances of the present case and concluded that the acts at issue did not have a sufficiently solid factual basis.
106 As regards the fourth part of that ground of appeal, it must be held that, contrary to what is claimed by the Council, it does not follow from paragraph 115 of the judgment under appeal that the General Court relied on the fact that Ms El-Qaddafi had ceased to reside in Libya when she made the statements at issue in concluding that the Council had not explained why her name should be maintained on the lists at issue. It is apparent from that paragraph that, since the adoption of the 2011 acts, she had ceased to reside in Libya and the file did not mention any participation on her part in Libyan political life or statements other than the statements at issue. Thus, in paragraph 115 of the judgment under appeal, the General Court took account of those two different circumstances - namely the date of Ms El-Qaddafi’s departure from Libya and her lack of participation in Libyan political life - by distinguishing them.
107 In any event, it must be borne in mind that, in accordance with settled case-law, the review of the lawfulness of the grounds which are the basis of the decision to include or to maintain a person’s name on the lists of persons subject to restrictive measures entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, are substantiated (judgment of 3 December 2020, Saleh Thabet and Others v Council , C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992, paragraph 33 and the case-law cited).
108 In those circumstances, the fourth ground of appeal must be rejected.
109 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. Maintaining the effects of the 2020 acts Arguments of the parties
110 The Council requests, in the event that the Court upholds the judgment under appeal so far as concerns the annulment of the 2020 acts, that the Court order that the effects of those acts be maintained as regards Ms El-Qaddafi, pursuant to the second paragraph of Article 264 TFEU, for a period of three months from the date of delivery of the present judgment. According to the Council, which refers to the judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 373), the annulment of those acts with immediate effect would be capable of seriously and irreversibly prejudicing the effectiveness of the restrictive measures imposed by them and which the European Union is required to implement, because in the interval preceding their replacement by new acts, Ms El-Qaddafi might take steps to prevent fund-freezing measures from being applied to her again.
111 Ms El-Qaddafi contends that the request should be refused. Findings of the Court
112 Under the second paragraph of Article 264 TFEU, the Court may, if it considers this necessary, state which of the effects of an act which it has declared void are to be considered definitive.
113 In that regard, it is apparent from the case-law of the Court that, when examining whether to maintain the effects of an act that is to annulled, first, account must be taken of whether annulment of the act concerned with immediate effect would be capable of seriously and irreversibly prejudicing the effectiveness of the restrictive measures imposed by that act, and, secondly, it must be ascertained whether the lawfulness of that act is contested not because of its aim or content but on grounds of lack of competence, infringement of essential procedural requirements or infringement of principles applicable in the context of the procedure followed when those restrictive measures were adopted (see, to that effect, judgments of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission , C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraphs 373 and 374, and of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB , C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 175 and the case-law cited).
114 In the present case, first, the Council has not sufficiently substantiated its argument that annulment of the 2020 acts with immediate effect would be capable of seriously and irreversibly prejudicing the effectiveness of the restrictive measures imposed by those acts. Merely alleging in general terms that Ms El-Qaddafi might take steps to prevent fund-freezing measures from being applied to her again, without the Council providing any additional information or explanation to support that assertion, is not sufficient for that purpose. Secondly, as is apparent from paragraphs 30 and 45 of the present judgment, those acts were annulled not for breach of the procedure followed when the restrictive measures were adopted or for infringement of essential procedural requirements, but on the ground that they did not have a sufficiently solid factual basis to justify maintaining Ms El-Qaddafi’s name on the lists at issue and, therefore, because of the assessment of the lawfulness of those acts on the merits.
115 In those circumstances, the Council’s request that the effects of the 2020 acts be maintained for a period of three months from the date of delivery of the present judgment must be refused. Costs
116 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
117 In accordance with Article 138(1) of those rules of procedure, which applies to appeal proceedings pursuant to 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.
118 Since the Council has been unsuccessful and Ms El-Qaddafi has applied for costs, the Council must be ordered to pay the costs.
119 In accordance with Article 140(1) of the Rules of Procedure, applicable, mutatis mutandis , to appeal proceedings pursuant to 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, must bear its own costs. On those grounds, the Court (Sixth Chamber) hereby: 1. Dismisses the appeal; 2. Orders the Council of the European Union to bear its own costs and to pay those incurred by Ms Aisha Muammer Mohamed El-Qaddafi; 3. Orders the French Republic to bear its own costs. Xuereb Kumin Ziemele Delivered in open court in Luxembourg on 20 April 2023. A. Calot Escobar P.G. Xuereb Registrar President of the Chamber * Language of the case: English.