Judgments nº T-47/03 of Court of First Instance of the European Communities, July 11, 2007

• Resolution Date: July 11, 2007
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-47/03

(Common foreign and security policy – Restrictive measures against certain persons and entities with a view to combating terrorism – Freezing of funds – Competence of the Community – Action for annulment – Rights of the defence – Statement of reasons – Right to effective judicial protection – Action for damages)

In Case T‑47/03,

Jose Maria Sison, residing in Utrecht (Netherlands), represented by J. Fermon, A. Comte, H. Schultz, D. Gurses and T. Olsson, lawyers,

applicant,

supported by

Negotiating Panel of the National Democratic Front of the Philippines, established in Utrecht,

Luis G. Jalandoni, residing in Utrecht,

Fidel V. Agcaoili, residing in Utrecht,

Maria Consuelo K. Ledesma, residing in Utrecht,

represented by B. Tomlow, lawyer,

interveners,

v

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

defendant,

supported by

Kingdom of the Netherlands, represented by H. Sevenster, acting as Agent,

and by

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

interveners,

APPLICATION for, first, partial annulment of Council Decision 2002/974/EC of 12 December 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 2002/848/EC (OJ 2002 L 337, p. 85) and, secondly, compensation,

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

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

Registrar: K. Pocheć, Administrator,

having regard to the written procedure and further to the hearing on 30 May 2006,

gives the following

Judgment

Legal framework and background to the dispute

1 Article 301 EC states:

‘Where it is provided, in a common position or in a joint action adopted according to the provisions of the Treaty on European Union relating to the common foreign and security policy, for an action by the Community to interrupt or to reduce, in part or completely, economic relations with one or more third countries, the Council shall take the necessary urgent measures.’

2 Article 60(1) EC provides:

‘If, in the cases envisaged in Article 301, action by the Community is deemed necessary, the Council may, in accordance with the procedure provided for in Article 301, take the necessary urgent measures on the movement of capital and on payments as regards the third countries concerned.’

3 Article 308 EC provides:

‘If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community, and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.’

4 On 28 September 2001 the United Nations Security Council (‘the Security Council’) adopted Resolution 1373 (2001) laying down strategies to combat terrorism, in particular the financing of terrorism, by all possible means. Paragraph 1(c) of that resolution provides, in particular, 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.

5 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).

6 Article 1(1) of Common Position 2001/931 provides that 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.

7 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’, respectively.

8 The first subparagraph of Article 1(4) of Common Position 2001/931 states that ‘the list in the Annex shall 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’. The second subparagraph of Article 1(4) of Common Position 2001/931 states: ‘“competent authority” shall mean a judicial authority, or, where judicial authorities have no competence in the area covered by this paragraph, an equivalent competent authority in that area’.

9 Article 1(5) of Common Position 2001/931 provides that ‘the Council shall work to ensure that names of natural or legal persons, groups or entities listed in the Annex have sufficient particulars appended to permit effective identification of specific human beings, legal persons, entities or bodies, thus facilitating the exculpation of those bearing the same or similar names’.

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

11 Articles 2 and 3 of Common Position 2001/931 provide that 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 are not made available, directly or indirectly, for their benefit.

12 Taking the view that a regulation was required in order to implement the measures set out in Common Position 2001/931 at Community level, the Council adopted on 27 December 2001, on the basis of Articles 60 EC, 301 EC and 308 EC, Regulation (EC) No 2580/2001 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 unanimously, 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.

13 The original list of persons, groups and entities to whom and to which Regulation No 2580/2001 applied 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.

14 On 28 October 2002 the Council adopted, under Articles 15 EU and 34 EU, Common Position 2002/847/CFSP updating Common Position 2001/931/CFSP and repealing Common Position 2002/462/CFSP (OJ 2002 L 295, p. 1). The Annex thereto updates the list of persons, groups and entities to which Common Position 2001/931 applies.

15 Part 1 of that Annex, headed ‘Persons’, includes inter alia the name of the applicant, who is described as follows:

‘32. SISON Jose Maria (aka Armando Liwanag, aka Joma, in charge of NPA), born 8.2.1939 in Cabugao, Philippines.’

16 Part 2 of that Annex, headed ‘Groups and Entities’, includes the name of the New People’s Army (‘the NPA’), which is described as follows:

‘17. New People’s Army (NPA), Philippines, linked to Sison Jose Maria C. (aka Armando Liwanag, aka Joma, in charge of NPA).’

17 By Decision 2002/848/EC of 28 October 2002 implementing Article 2(3) of Regulation (EC) No 2580/2001 and repealing Decision 2002/460/EC (OJ 2002 L 295, p. 12), the Council adopted an updated list of the persons, groups and entities to whom and which that regulation applied. 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 Common Position 2002/847.

18 By Decision 2002/974/EC of 12 December 2002 implementing Article 2(3) of Regulation (EC) No 2580/2001 and repealing Decision 2002/848/EC (OJ 2002 L 337, p. 85), the Council adopted a fresh updated list of the persons, groups and entities to which that regulation applied. The names of the applicant and the NPA are repeated in that list, in the same terms as those used in the Annex to Common Position 2002/847 and the Annex to Decision 2002/848.

19 Since then, the Council has adopted several common positions and decisions updating the lists provided for under Common Position 2001/931 and Regulation No 2580/2001, respectively (‘the lists at issue’) (see, most recently, Council Common Position 2005/936/CFSP of 21 December 2005 updating Common Position 2001/931 and repealing Common Position 2005/847/CFSP (OJ 2005 L 340, p. 80); see also, in order of adoption, Council Decision 2003/480/EC of 27 June 2003 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2002/974 (OJ 2003 L 160, p. 81), Council Decision 2003/646/EC of 12 September 2003 implementing Article 2(3) of Regulation No 2580/2001 and...