Judgments nº T-341/07 of Court of First Instance of the European Communities, September 30, 2009

• Resolution Date: September 30, 2009
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-341/07

(Common foreign and security policy – Restrictive measures against certain persons and entities with a view to combating terrorism – Common Position 2001/931/CFSP and Regulation (EC) No 2580/2001 – Actions for annulment – Adaptation of heads of claim – Judicial review – Statement of reasons – Conditions for implementation of a Community measure freezing funds)

In Case T‑341/07,

Jose Maria Sison, residing in Utrecht (Netherlands), represented by J. Fermon, A. Comte, H. Schultz, D. Gürses and W. Kaleck, lawyers,

applicant,

v

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

defendant,

supported by

United Kingdom of Great Britain and Northern Ireland, represented by S. Behzadi Spencer and I. Rao, acting as Agents,

by

Kingdom of the Netherlands, represented by C. Wissels, M. de Mol, M. Noort and Y. de Vries, acting as Agents,

and by

Commission of the European Communities, represented by P. Aalto and S. Boelaert, acting as Agents,

interveners,

APPLICATION initially for, first, annulment in part of Council Decision 2007/445/EC of 28 June 2007 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 Decisions 2006/379/EC and 2006/1008/EC (OJ 2007 L 169, p. 58) and, secondly, for compensation,

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

composed of N.J. Forwood (Rapporteur), President, D. Šváby and E. Moavero Milanesi, Judges,

Registrar: C. Kantza, Administrator,

having regard to the written procedure and further to the hearing on 30 April 2009,

gives the following

Judgment

Background to the case

1 For a summary of the early background to this case, reference is made to the judgment of the Court of First Instance of 11 July 2007 in Case T-47/03 Sison v Council, not published in the European Court Reports (‘Sison’), in particular to paragraphs 46 to 70, describing the administrative and judicial proceedings relating to the applicant, Mr Jose Maria Sison, in the Netherlands which gave rise to the judgments of the Raad van State (Council of State, Netherlands) of 17 December 1992 (‘the judgment of the Raad van State of 1992’) and of 21 February 1995 (‘the judgment of the Raad van State of 1995’) and also to the decision of the Arrondissementsrechtbank te’s‑Gravenhage (The Hague District Court, ‘the Rechtbank’), Sector Bestuursrecht, Rechtseenheidskamer Vreemdelingenzaken (Administrative Law Section, Chamber responsible for the uniform application of the law, cases involving aliens) of 11 September 1997 (‘the decision of the Rechtbank’).

2 In Sison the Court of First Instance annulled Council Decision 2006/379/EC of 29 May 2006 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 2005/930/EC (OJ 2006 L 144, p. 21), in so far as it concerned the applicant, on the grounds that no statement of reasons had been given for the decision, that it had been adopted in the course of a procedure during which the applicant’s rights of defence had not been observed and that the Court of First Instance itself was not in a position to undertake the judicial review of the lawfulness of that decision (see Sison, paragraph 226).

3 After the hearing in Sison, which was held on 30 May 2006, but before judgment was delivered, the Council of the European Union adopted Decision 2007/445/EC of 28 June 2007 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decisions 2006/379/EC and 2006/1008/EC (OJ 2007 L 169, p. 58). By that decision, the Council maintained the applicant’s name in the list in the Annex to 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, corrigendum in OJ 2007 L 164, p. 36, ‘the list at issue’).

4 Before that decision was adopted, by letter of 23 April 2007 the Council informed the applicant that, in its view, the reasons for including him in the list at issue were still valid, and that it therefore intended to maintain him in that list. Enclosed with that letter was the Council’s statement of reasons. The applicant was also informed that he could submit observations to the Council on the latter’s intention to continue to maintain him in the list and on the reasons stated in that regard, and any supporting documents, within a period of one month.

5 In the statement of reasons enclosed with that letter, the Council noted the following:

‘SISON, Jose Maria (alias Armando Liwanag, alias Joma, head of the Communist Party of the Philippines, including the NPA) born on 8.2.1939 in Cabugao, Philippines

Jose Maria Sison is the founder and leader of the Philippine Communist Party, including the New People’s Army (NPA) (Philippines), which is put in the list of groups involved in terrorist acts in the meaning of Article 1, paragraph 2, of the Common Position 2001/931/CFSP. He has repeatedly advocated the use of violence for the realisation of political aims and has given leadership to the NPA, which is responsible for a number of terrorist attacks in the Philippines. These acts fall under Article 1, paragraph 3, point iii, … (i) and (j) of Common Position 2001/931/CFSP (hereafter “the Common Position”) and have been perpetrated with the intention as meant in Article 1, paragraph 3, point iii) of the Common Position.

The [Rechtbank] confirmed on 11 September 1997 … [the judgment of the Raad van State]. The Administrative Law Division of the Raad van State came to the decision that the status of asylum seeker in the Netherlands was legitimately refused, because the proof was delivered that he gave leadership – or has tried to give – to the armed wing of the CPP, the NPA, which is responsible for a number of terrorist attacks in the Philippines, and because it also turned out that he maintains contacts with terrorist organisations throughout the whole world.

The Minister of Foreign Affairs and the Minister of Finance [of the Netherlands] decided, through ministerial ruling (“regeling”) No DJZ/BR/749‑02 of 13 August 2002 (Sanction regulation terrorism 2002 III), which was published in the Netherlands Gazette on 13 August 2002, that all means which belong to Jose Maria Sison and the Philippine Communist Party, including the Philippine New People’s Army (NPA) be frozen.

The American Government named Jose Maria Sison as “Specially Designated Global Terrorist” (specifically named as a world [“mondial”] terrorist person pursuant to US Executive Order 13224. This decision can be reviewed according to American law.

Thus with regards to Jose Maria Sison, decisions have been taken by competent authorities in the meaning of Article 1, paragraph 4, of the Common Position.

The Council is convinced that the reasons to put Jose Maria Sison on the list of persons and entities to which the stated measures in Article 2, paragraphs 1 and 2 of Regulation (EC) No 2580/2001 are applicable, remain valid.’

6 By letter of 22 May 2007 the applicant submitted to the Council its observations in response. He claimed, inter alia, that neither the judgment of the Raad van State of 1995 nor the decision of the Rechtbank satisfied the requirements laid down by the relevant Community legislation to serve as a basis for a decision to freeze funds. He also requested that the Council should, first, give him an opportunity to be heard before a new decision to freeze funds was adopted and, secondly, send a copy of his written observations and all the procedural documents in Case T‑47/03 to all the Member States.

7 Decision 2007/445 was notified to the applicant under cover of a letter from the Council of 29 June 2007. Enclosed with that letter was a statement of reasons identical to that enclosed with the letter from the Council of 23 April 2007.

8 By Decision 2007/868/EC of 20 December 2007 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2007/445 (OJ 2007 L 340, p. 100), the Council adopted a new updated list of the persons, groups and entities to whom and to which that regulation applies. The names of the applicant and of the NPA are repeated in that list, in the same terms as those used in the Annex to Decision 2007/445.

9 Decision 2007/868 was notified to the applicant under cover of a letter from the Council of 3 January 2008. Enclosed with that letter was a statement of reasons identical to that enclosed with the letters from the Council of 23 April and 29 June 2007.

10 By Decision 2008/343/EC of 29 April 2008 amending Decision 2007/868 (OJ 2008 L 116, p. 25), the Council maintained the applicant in the list at issue, although it amended the entries for the applicant and the Communist Party of the Philippines in the Annex to Decision 2007/868.

11 Article 1 of Decision 2008/343 provides:

‘In the Annex to Decision 2007/868/EC, the entry for Mr Sison, Jose Maria (a.k.a. Armando Liwanag, a.k.a. Joma), shall be replaced by the following:

“SISON, Jose Maria (a.k.a Armando Liwanag, a.k.a. Joma), born 8.2.1939 in Cabugao (Philippines) — person playing a leading role in the Communist Party of the Philippines, including the NPA”.’

12 Under Article 2 of Decision 2008/343:

‘In the Annex to Decision 2007/868/EC the entry for the Communist Party of the Philippines shall be replaced by the following:

“Communist Party of the Philippines, including the New People’s Army (NPA), linked to SISON, Jose Maria (a.k.a. Armanso Liwanag, a.k.a. Joma, who plays a leading role in the Communist Party of the Philippines, including the NPA)”.’

13 Before that decision was adopted, by letter of 25 February 2008 the Council informed the applicant that, in its view, the reasons given for including him in the list at issue were still valid and that, therefore, it...