Judgment of the General Court (Fourth Chamber) of 14 December 2022

Common foreign and security policySpecific restrictive measures directed against certain persons and entities with a view to combating terrorismDecision to freeze fundsAdoption or maintenance on the basis of a national decision to investigate, prosecute or convictCompetent authority to adopt that national decisionMeaningAdministrative authorityIncludedConditions

(Council Common Position 2001/931, Art. 1(4))

(see paragraphs 16, 17, 48-53, 56, 61, 67)

Common foreign and security policySpecific restrictive measures directed against certain persons and entities with a view to combating terrorismDecision to freeze fundsAdoption or maintenance on the basis of a national decision to investigate, prosecute or convictRe-examination in order to justify retention on the fund-freezing listCooperation between the Council and competent authoritiesScopeDistinction between initial adoption and review of measures

(Council Common Position 2001/931, Art. 1(4))

(see paragraphs 19, 23)

Common foreign and security policySpecific restrictive measures directed against certain persons and entities with a view to combating terrorismDuty of sincere cooperation between Member States and the EU institutionsInitial decision to freeze fundsJustificationBurden of proof borne by the CouncilScope

(Council Common Position 2001/931, Art. 1(4))

(see paragraphs 20, 21, 121)

Common foreign and security policySpecific restrictive measures directed against certain persons and entities with a view to combating terrorismDecision to freeze fundsAdoption or retention on the basis of a national decisionNo new material justifying retention being required to be the subject of a national decision taken after the decision on which the initial listing was based

(Council Common Position 2001/931, Art. 1(4) and (6))

(see paragraphs 22, 41, 135, 148)

Common foreign and security policySpecific restrictive measures directed against certain persons and entities with a view to combating terrorismFreezing of fundsScopePersons, groups and entities involved in terrorist actsMeaningCriterion for assessmentQuestion separate from that of the identification of the groupInfringement of the principle of legal certaintyNone

(Council Common Position 2001/931, Art. 1(2); Council Regulation No 2580/2001, Art. 2(3)(i) and (ii))

(see paragraphs 29-34)

Common foreign and security policySpecific restrictive measures directed against certain persons and entities with a view to combating terrorismDecision to freeze fundsAdoption or maintenance on the basis of a national decision to investigate, prosecute or convictNo requirement that a national decision be taken in the context of criminal proceedings stricto sensuConditions

(Council Common Position 2001/931, Art. 1(4))

(see paragraphs 54, 55)

Common foreign and security policySpecific restrictive measures directed against certain persons and entities with a view to combating terrorismDuty of sincere cooperation between Member States and the EU institutionsDecision to freeze fundsAdoption or maintenance on the basis of a national decision to investigate, prosecute or convictNational decision to convictNo obligation to adduce the serious and credible evidence or clues underlying the national decision

(Council Common Position 2001/931, Art. 1(4); Council Decisions (CFSP) 2021/142, (CFSP) 2021/1192 and (CFSP) 2022/152; Council Regulations 2021/138, 2021/1188 and 2022/147)

(see paragraphs 72-80)

Common foreign and security policySpecific restrictive measures directed against certain persons and entities with a view to combating terrorismDecision to freeze fundsAdoption or retention on the basis of a national decisionCompetent authority to adopt that national decisionMeaningAuthority of a non-member StateIncluded

(Council Common Position 2001/931, Art. 1(4); Council Decisions (CFSP) 2021/142, (CFSP) 2021/1192 and (CFSP) 2022/152; Council Regulations 2021/138, 2021/1188 and 2022/147)

(see paragraphs 83, 84)

Common foreign and security policySpecific restrictive measures directed against certain persons and entities with a view to combating terrorismDecision to freeze fundsAdoption or maintenance on the basis of a national fund-freezing decision of an authority of a third StateWhether permissibleConditionNational decision adopted in accordance with the rights of the defence and the right to effective judicial protectionCouncil’s verification obligationObligation to state reasonsScope

(Council Common Position 2001/931, Art. 1(4); Council Decisions (CFSP) 2021/142, (CFSP) 2021/1192 and (CFSP) 2022/152; Council Regulations 2021/138, 2021/1188 and 2022/147)

(see paragraphs 85, 86, 89, 91-95)

Common foreign and security policySpecific restrictive measures directed against certain persons and entities with a view to combating terrorismFreezing of fundsScopePersons, groups and entities involved in terrorist actsInitial listingActs of terrorismMeaningClassification by national authoritiesCouncil’s obligation to verify

(Council Common Position 2001/931, Art. 1(3), (4) and (6))

(see paragraphs 98-103, 123-130)

Common foreign and security policySpecific restrictive measures directed against certain persons and entities with a view to combating terrorismFreezing of fundsCommon Position 2001/931ScopeArmed conflict within the meaning of international humanitarian lawIncluded

(Council Common Position 2001/931, Art. 1(3), first subpara.; Council Regulation No 2580/2001; Council Framework Decision 2002/475)

(see paragraphs 106-108, 111-116, 118)

Common foreign and security policySpecific restrictive measures directed against certain persons and entities with a view to combating terrorismFreezing of fundsScopePrinciple of self-determinationDistinction between the objectives specific to the exercise of the right to self-determination and the behaviour adopted to achieve themCouncil’s margin of discretion

(Council Common Position 2001/931, Art. 1(3), first subpara., (i) to (iii))

(see paragraphs 109, 110, 115, 117)

Common foreign and security policySpecific restrictive measures directed against certain persons and entities with a view to combating terrorismDecision to freeze fundsPrecautionary nature of the measures adoptedPrinciple that offences and penalties must be defined by lawApplicabilityNone

(Charter of Fundamental Rights of the European Union, Art. 49(1); Council Common Position 2001/931)

(see paragraph 120)

Common foreign and security policySpecific restrictive measures directed against certain persons and entities with a view to combating terrorismDecision to freeze fundsRetention on the basis of a national decisionNational decision no longer by itself supporting the conclusion that there is an ongoing risk of involvement in acts of terrorismObligation of the Council to take into account more recent facts which demonstrate that that risk is ongoing

(Council Common Position 2001/931, Art. 1(6); Council Decisions (CFSP) 2021/142, (CFSP) 2021/1192 and (CFSP) 2022/152; Council Regulations 2021/138, 2021/1188 and 2022/147)

(see paragraphs 131-134, 142-144, 146, 147, 149, 152, 156, 157, 163, 214, operative part 1)

European UnionJudicial review of the legality of the acts of the institutionsSpecific restrictive measures directed against certain persons and entities with a view to combating terrorismDecision to freeze fundsContinued listing on the basis of a national decision adopted by a competent authorityScope of the reviewReview extending to all of the material used to demonstrate that the risk of involvement in acts of terrorism is ongoingNot all of the material being derived from a national decision adopted by a competent authorityIrrelevant

(Council Common Position 2001/931, Art. 1(6))

(see paragraph 137)

Common foreign and security policySpecific restrictive measures directed against certain persons and entities with a view to combating terrorismFreezing of the funds of an organisation involved in acts of terrorismRestrictions on the right to property, freedom of expression and the right of assemblyNo breach of principle of proportionality

(Council Common Position 2001/931; Council Decisions (CFSP) 2021/142, (CFSP) 2021/1192 and (CFSP) 2022/152; Council Regulations 2021/138, 2021/1188 and 2022/147)

(see paragraphs 165-170, 173)

EU lawPrinciplesRights of the defenceRight to effective judicial protectionSpecific restrictive measures directed against certain persons and entities with a view to combating terrorismDecision to freeze fundsRight of access to documentsRight subject to request for access being made to the CouncilNo infringement

(Council Common Position 2001/931; Council Regulation No 2580/2001)

(see paragraph 198)

EU lawPrinciplesRights of the defenceRight to effective judicial protectionSpecific restrictive measures directed against certain persons and entities with a view to combating terrorismDecision to freeze fundsObligation to disclose incriminating evidenceScope

(Council Common Position 2001/931, Art. 1(4); Council Decisions (CFSP) 2021/142, (CFSP) 2021/1192 and (CFSP) 2022/152; Council Regulations No 2580/2001, Art. 2(3), 2021/138, 2021/1188 and 2022/147)

(see paragraphs 200-203)

Action for annulmentJudgment annulling a measureEffectsObligation to implementScopeObligation to ensure that the annulled measure is not replaced by a measure affected by the same irregularityExtension of that obligation to subsequent measures

(Art. 266 TFEU; Statute of the Court of Justice, Art. 60, second para.)

(see paragraphs 207-209)

Judicial proceedingsCostsCosts caused unreasonably or vexatiouslyConsequences of the Council’s failure to comply with its obligation to draw the consequences of the illegalities found by a judgment ordering annulmentOrder requiring each party to bear its own costs

(Rules of Procedure of the General Court, Arts 134(1) and 135(2))

(see paragraphs 212, 215-218)

Operative part

The Court:

Dismisses the action;

Orders each party to bear its own costs.