Judgments nº T-228/02 of Court of First Instance of the European Communities, December 12, 2006

• Resolution Date: December 12, 2006
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-228/02

In Case T-228/02,

Organisation des Modjahedines du peuple d-Iran, established in Auvers-sur-Oise (France), represented by J.-P. Spitzer, lawyer, D.†Vaughan QC, and …. de Boissieu, lawyer,

applicant,

v

Council of the European Union, represented by M. Vitsentzatos and M. Bishop, acting as Agents,

defendant,

supported by

United Kingdom of Great Britain and Northern Ireland, represented initially by J.E. Collins, and subsequently by R. Caudwell and C. Gibbs, acting as Agents, assisted by S. Moore, Barrister,

intervener,

ACTION, initially, for annulment of Common Position 2002/340/CFSP of 2 May 2002 updating Common Position 2001/931/CFSP on the application of specific measures to combat terrorism (OJ 2002 L†116, p.†75), of Common Position 2002/462/CFSP of 17 June 2002 updating Common Position 2001/931/CFSP and repealing Common Position 2002/340 (OJ 2002 L†160, p.†32), and of Council Decision 2002/460/EC of 17 June 2002 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 2002/334/EC (OJ 2002 L†160, p.†26), in so far as the applicant is included in the list of persons, groups and entities to which those provisions apply and, additionally, a claim for damages,

THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Second Chamber),

composed of J. Pirrung, President, N.J. Forwood and S. Papasavvas, Judges,

Registrar: E. Coulon,

having regard to the written procedure and further to the hearing on 7 February 2006,

gives the following

Judgment

†Background to the case

1††††††††As appears from the case-file, the applicant, the Organisation des Modjahedines du peuple d-Iran (People-s Mujahidin of Iran, Mujahedin-e Khalq in Farsi), was founded in 1965 and set itself the objective of replacing the regime of the Shah of Iran, then the mullahs- regime, by a democracy. In 1981 it took part in the foundation of the National Council of Resistance of Iran (NCRI), a body defining itself as the -parliament in exile of the Iranian resistance-. At the time of the facts giving rise to the present dispute, it was composed of five separate organisations and an independent section, making up an armed branch operating inside Iran. According to the applicant, however, it and all its members have expressly renounced all military activity since June 2001 and it no longer has an armed structure at the present time.

2††††††††By order of 28 March 2001, the United Kingdom Secretary of State for the Home Department (-the Home Secretary-) included the applicant in the list of organisations proscribed under the Terrorism Act 2000. The applicant brought two parallel actions against that order, one an appeal before the Proscribed Organisations Appeal Commission (-POAC-), the other for judicial review before the High Court of Justice (England and Wales), Queen-s Bench Division (Administrative Court) (-the High Court-).

3††††††††On 28 September 2001, the United Nations Security Council (-the Security Council-) adopted Resolution 1373†(2001) laying down strategies to combat terrorism by all means, in particular the financing thereof. Paragraph 1(c) of that resolution provides, inter alia, that all States must 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.

4††††††††On 27 December 2001, taking the view that action by the Community was needed in order to implement Security Council Resolution 1373 (2001), the Council adopted Common Position 2001/930/CFSP on combating terrorism (OJ 2001 L†344, p. 90) and Common Position 2001/931/CFSP on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93).

5††††††††According to Article 1(1) of Common Position 2001/931, the latter applies -to persons, groups and entities involved in terrorist acts and listed in the Annex-. The applicant-s name does not appear in that list.

6††††††††Article 1(2) and (3) of Common Position 2001/931 defines what is to be understood by -persons, groups and entities involved in terrorist acts- and by -terrorist act-.

7††††††††According to the terms of Article 1(4) of Common Position 2001/931, the list in the Annex 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. -Competent authority- is understood to mean a judicial authority or, where judicial authorities have no competence in the relevant area, an equivalent competent authority in that area.

8††††††††According to Article 1(6) of Common Position 2001/931, the names of persons and entities in the list in the Annex are to be reviewed at regular intervals and at least once every six months to ensure that there are grounds for keeping them in the list.

9††††††††According to Articles 2 and 3 of Common Position 2001/931, the European Community, acting within the limits of the powers conferred on it by the EC Treaty, is to order the freezing of the funds and other financial assets or economic resources of persons, groups and entities listed in the Annex and is to ensure that funds, financial assets or economic resources or financial or other related services will not be made available, directly or indirectly, for their benefit.

10††††††On 27 December 2001, considering that a regulation was necessary in order to implement at Community level the measures described in Common Position 2001/931, the Council adopted, on the basis of Articles 60†EC, 301†EC and 308†EC, Council 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). That regulation provides that, except as permitted thereunder, all funds belonging to a natural or legal person, group or entity included in the list referred to in Article 2(3) thereof are to be frozen. Likewise, it is prohibited to make funds available or provide financial services to those persons, groups or entities. The Council, acting by unanimity, is to establish, review and amend the list of persons, groups and entities to which the regulation applies, in accordance with the provisions laid down in Article 1(4), (5) and (6) of Common Position 2001/931.

11††††††The initial list of persons, groups and entities to which Regulation No 2580/2001 applies was established by Council Decision 2001/927/EC of 27 December 2001 establishing the list provided for in Article 2(3) of Council Regulation (EC) No 2580/2001 (OJ 2001 L 344, p. 83). The applicant-s name is not included in that list.

12††††††By judgment of 17 April 2002 the High Court dismissed the action for judicial review brought by the applicant against the Home Secretary-s order of 28 March 2001 (see paragraph 2 above), considering, essentially, that the POAC was the appropriate forum to hear the applicant-s arguments, including those alleging infringement of the right to be heard.

13††††††On 2 May 2002, the Council adopted, under Articles 15†EU and 34†EU, Common Position 2002/340/CFSP, updating Common Position 2001/931 (OJ 2002 L†116, p.†75). The annex thereto updates the list of persons, groups and entities to which Common Position 2001/931 applies. Point 2 of that annex, entitled -Groups and entities-, includes inter alia the applicant-s name, identified as follows†:

-Mujahedin-e Khalq Organisation (MEK or MKO) (minus the -National Council of Resistance of Iran- (NCRI)) (a.k.a. The National Liberation Army of Iran (NLA, the militant wing of the MEK), the People-s Mujahidin of Iran (PMOI), National Council of Resistance (NCR), Muslim Iranian Students- Society)-.

14††††††By Council Decision 2002/334/EC of 2 May 2002 implementing Article 2(3) of Regulation (EC) No 2580/2001 and repealing Decision 2001/927 (OJ 2002 L†116, p.†33), the Council adopted an updated list of the persons, groups and entities to which that regulation applies. The applicant-s name is included in that list, in the same terms as those employed in the Annex to Common Position 2002/340.

15††††††On 17 June 2002, the Council adopted Common Position 2002/462/CFSP updating Common Position 2001/931 and repealing Common Position 2002/340 (OJ 2002 L†160, p.†32) and also Council Decision 2002/460/EC implementing Article 2(3) of Regulation (EC) No 2580/2001 and repealing Decision 2002/334 (OJ 2002 L†160, p.†26). The applicant-s name was maintained in the lists provided for by Common Position 2001/931 and by Regulation No 2580/2001 (-the disputed lists- or, in the case of the latter, -the disputed list-).

16††††††By judgment of 15 November 2002 the POAC dismissed the appeal brought by the applicant against the Home Secretary-s order of 28 March 2001 (see paragraph 2 above), considering, inter alia, that there was no requirement to hear the applicant-s views beforehand, such a hearing being impractical or undesirable in the context of legislation directed against terrorist organisations. According to that same decision, the legal scheme of the Terrorism Act 2000 provides a genuine opportunity for the applicant-s views to be heard before the POAC.

17††††††Since then, the Council has adopted a number of common positions and decisions updating the disputed lists. Those in force at the date of the close of the oral procedure were: Common Position 2005/936/CFSP of the Council of 21 December 2005...