Judgment of the General Court (First Chamber) of 4 September 2019.Hamas v Council of the European Union.Common foreign and security policy – Restrictive measures against persons, groups and entities with a view to combating terrorism – Freezing of funds – Whether an authority of a third State can be classified as a competent authority within the meaning of Common Position 2001/931/CFSP – Factual basis of the decisions to freeze funds – Obligation to state reasons – Error of assessment – Principle of non-interference – Rights of the defence – Right to effective judicial protection – Authentication of the Council measures.Case T-308/18.

Case T‑308/18

Hamas

v

Council of the European Union

Judgment of the General Court (First Chamber), 4 September 2019

(Common foreign and security policy — Restrictive measures against persons, groups and entities with a view to combating terrorism — Freezing of funds — Whether an authority of a third State can be classified as a competent authority within the meaning of Common Position 2001/931/CFSP — Factual basis of the decisions to freeze funds — Obligation to state reasons — Error of assessment — Principle of non-interference — Rights of the defence — Right to effective judicial protection — Authentication of the Council measures)

Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Fund-freezing decision — Adoption or retention on the basis of a national fund-freezing decision — Authority competent to adopt that national decision — Concept — Authority of a third State — Included

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

(see paragraphs 54, 55)

Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Fund-freezing decision — Adoption or retention on the basis of a fund-freezing decision of an authority of a third State — Whether permissible — Condition — National decision taken in accordance with the rights of the defence and the right to effective judicial protection — Obligation to carry out checks borne by the Council — Obligation to state reasons — Scope

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

(see paragraphs 58-61)

Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Fund-freezing decision — Adoption or retention on the basis of a national decision instigating investigations or prosecution — Authority competent to adopt that national decision — Concept — Administrative authority — Whether included — Conditions

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

(see paragraphs 82-85)

Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Fund-freezing decision — Adoption or retention on the basis of a national decision instigating investigations, prosecution or condemnation — Absence of obligation for a national decision in the context of criminal proceedings stricto sensu — Conditions

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

(see paragraphs 91,92)

Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Obligation of cooperation in good faith between Member States and the institutions of the European Union — Fund-freezing decision — Justification — Respect for fundamental rights — Judicial review — Scope

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

(see paragraphs 101-105)

Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Obligation of cooperation in good faith between Member States and the institutions of the European Union — Fund-freezing decision — Adoption or retention on the basis of a national decision instigating investigations, prosecution or condemnation — Obligation to state reasons — Scope — National decision of condemnation — Absence of obligation to indicate the serious and credible evidence or clues forming the basis of the national decision

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

(see paragraphs 127-133, 136, 207)

Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Fund-freezing decision — Retention on the basis of a national fund-freezing decision — National decision no longer permitting in itself the conclusion that there is an ongoing risk of involvement in terrorist activities — Obligation for the Council to take into account more recent facts demonstrating that the risk still exists

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

(see paragraphs 138, 139)

European Union — Judicial review of the legality of acts of the institutions — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Fund-freezing decision — Retention on the basis of a national fund-freezing decision — Scope of review — Review extending to all the evidence taken into account in order to demonstrate that the risk of involvement in acts of terrorism still exists — Evidence not wholly based on a national decision adopted by a competent authority — No impact

(Art. 296 TFEU)

(see paragraphs 147, 148, 165, 168-171)

Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Freezing of funds — Regulation No 2580/2001 — Scope — Armed conflict within the meaning of international humanitarian law — Included

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

(see paragraphs 212, 213)

European Union law — Principles — Rights of the defence — Right to effective judicial protection — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Fund-freezing decision — Obligation to communicate incriminating evidence — Scope — Communication to the person concerned by means of publication in the Official Journal of the European Union — Whether permitted — Right of access to documents — Right conditional on a request to that effect submitted to the Council

(Council Common Position 2001/931; Council Decisions (CFSP) 2018/475 and (CFSP) 2018/1084; Council Regulations 2018/468 and 2018/1071)

(see paragraphs 252, 257, 258)

Action for annulment — Pleas — Breach of essential procedural requirements — Breach of the provisions of the Council’s Rules of Procedure relating to the authentication of its acts — Need to rely on harm or defects other than the lack of authentication — None — Plea required to be raised by the Court of its own motion

(Art. 263 and 297(2) TFEU; Council’s Rules of Procedure, Art. 15)

(see paragraphs 269, 272-277, 295-297, 299, 304)

Acts of the institutions — Statement of reasons — Obligation — Scope — Fund-freezing decision taken in respect of certain persons and entities suspected of terrorist activities — Decision and statement of reasons set out in separate documents — Separate publication justified by overriding considerations of public interest — Presumption of authentication of the unsigned statement of reasons — None — Obligation to authenticate the decision and the statements of reasons

(Art. 296 TFEU; Council Decisions (CFSP) 2018/475 and (CFSP) 2018/1084; Council Regulations 2018/468 and 2018/1071)

(see paragraphs 281, 282, 287)

Résumé

By its judgment of 4 September 2019, Hamas v Council (T‑308/18, EU:T:2019:557), in the context of an action for annulment under Article 263 TFEU, the General Court annulled four acts adopted by the Council of the European Union in 2018 ( 1 ) (‘the contested measures’) which retained the name of the applicant, ‘“Hamas”, including “Hamas-Izz al-Din al-Qassem”’, on the lists, annexed to those acts, of persons, groups and entities involved in acts of terrorism and affected by the measures freezing funds and economic resources (‘the lists at issue’). In order to include the applicant’s name on the lists at issue, the Council had relied on four national decisions, adopted respectively by a United Kingdom authority and by United States authorities between 1995 and 2001.

Essentially, the Court applied the reasoning which it had adopted in the judgments of 10 April 2019, Gamaa Islamya Égypte v Council (T‑643/16, EU:T:2019:238), and of 6 March 2019, Hamas v Council (T‑289/15, EU:T:2019:138). Thus, the Court first of all considered that the statement of reasons relating to the United States decisions was insufficient, and that those decisions therefore could not serve as a basis for the contested measures. It stated, however, that, with respect to the inclusion of the applicant’s name on the lists at issue, those measures could refer solely to the decision of the United Kingdom authority. Consequently, the Court proceeded to examine the action, confining that examination to the contested measures in so far as they are originally based on the latter decision.

Next, the Court rejected seven of the eight pleas put forward by the applicant, alleging infringement of Article 1(4) of Common Position 2001/931, ( 2 ) breach of the obligation to state reasons, ‘errors as to the accuracy of the facts’, breach of the principle of non-interference, failure to have sufficient regard to the development of the situation owing to the passing of time, breach of the principle of respect for the rights of the defence and of the right to effective judicial protection. As regards the extent of the Council’s obligation to state reasons, the Court, relying on the case-law of the Court of Justice, stated that the Council is not required to indicate, in the statement of reasons relating to the contested measures, the source of the evidence relied on in order to retain a person or an entity on a fund-freezing list. The Court stated that if that evidence comes from a national decision, the Council is not required to prove that that decision was taken by a competent authority within the meaning of Article 1(4) of Common Position 2001/931. ( 3 )

Last, the Court annulled the contested measures in so far as they concern the applicant, owing to the failure to authenticate the statements of reasons relating to the contested measures, in accordance with the first subparagraph of Article 297 (2) TFEU and Article 15 of the Council’s Rules of Procedure. ( 4 )

In that regard, the Court observed, in the first place, that the plea alleging failure to authenticate the statements of reasons was raised by the applicant in answer to a question put by the Court, when it could have been raised in the application. That plea should in principle therefore be considered inadmissible. However, the Court stated that, since lack of authentication constitutes a breach of an essential procedural requirement, that plea is a matter of public policy and may thus at any time be examined by the Court of its own motion. Referring next to the case-law of the Court of Justice according to which the authentication required by the European Commission’s Rules of Procedure constitutes, pursuant to Article 263 TFEU, an essential procedural requirement the breach of which may give rise to an action for annulment, the Court, relying on the principle of legal certainty, transposed that case-law to acts of the Council.

In the second place, the Court made it clear that, since the operative part and the statement of reasons for an act constitute an indivisible whole, for the application of the provisions relating to the authentication of acts, no distinction can be drawn between the statement of reasons and the operative part of an act. It inferred that, when, as in the present case, an act and the statement of reasons are set out in separate documents, both must be authenticated, as required by those provisions, and the presence of a signature on one of them cannot give rise to a presumption that the other has also been authenticated. The Court observed, last, that that formality cannot be replaced by the description of the procedure followed within the Council for the purpose of adopting those acts. In particular, the Council cannot waive that formality on the ground that the procedural rules provided for in the Rules of Procedure were observed.

( 1 ) Council Decision (CFSP) 2018/475 of 21 March 2018 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) 2017/1426 (OJ 2018 L 79, p. 26); Council Implementing Regulation (EU) 2018/468 of 21 March 2018 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) No 2017/1420 (OJ 2018 L 79, p. 7); Council Decision (CFSP) 2018/1084 of 30 July 2018 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) 2018/475 (OJ 2018 L 194, p. 144); Council Implementing Regulation (EU) 2018/1071 of 30 July 2018 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) 2018/468 (OJ 2018 L 194, p. 23).

( 2 ) Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93).

( 3 ) Under that provision, the fund-freezing lists are 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 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.

( 4 ) Council Decision 2009/937/EU of 1 December 2009 adopting the Council’s Rules of Procedure (OJ 2009 L 325, p. 35).