Othman v European Council [Court of First Instance of the European Communities (Seventh Chamber)]
| Jurisdiction | European Union |
| Docket Number | (Case T-318/01) |
| Court | Court of Justice of the European Union |
| Date | 11 June 2009 |
Court of First Instance of the European Communities (Seventh Chamber)
(Forwood, President; Svaby and Moavero Milanesi, Judges)
(Case T-318/01)
Economics, trade and finance — Economic sanctions — Freezing of funds pursuant to United Nations Security Council Resolutions — Implementation within European Community — Council Regulation (EC) No 881/2002 — Applicant seeking annulment of contested regulation in so far as it concerned him — Whether annulment with immediate effect capable of seriously and irreversibly prejudicing effectiveness of restrictive measures imposed by regulation
International organizations — United Nations — Security Council Resolutions — Restrictive measures directed against certain individuals and entities to combat terrorism — Freezing of funds — Implementation required by European Community — Council Regulation (EC) No 881/2002 — Applicant listed in Annex I to Regulation as person associated with Usama bin Laden — Applicant seeking annulment of contested regulation in so far as it concerned him — Whether Council Regulation (EC) No 881/2002 breaching applicant's fundamental human rights
Human rights — Due process — Right to be heard — Right to effective legal remedy — Right to property — Impact of restrictive measures on rights and freedoms of applicant — Whether contested regulation adopted according to procedure where applicant's rights infringed — Extent, effects and justification, if any, of restriction of use of right to property — Applicant seeking annulment of contested regulation
Terrorism — Suppression of international terrorism — Maintenance of international peace and security — Security Council adopting Resolutions under Chapter VII of United Nations Charter — Implementation of Security Council Resolution within European Community — Council Common Position reflecting UN Security Council Resolutions — EC Community adopting EC Regulations to give effect to Council Common Position — The law of the European Community
Summary:2The facts:—The applicant, a Jordanian citizen resident in the United Kingdom, sought the annulment of Council Regulation (EC) No 881/2002 of 27 May 2002, in so far as it concerned him,3 under Article 230 of the EC Treaty. This contested regulation imposed certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban. The applicant was listed in Annex I to the regulation as a person associated with Usama bin Laden. The regulation gave effect within the Community to Security Council Resolution 1390 (2002) adopted on 16 January 2002. For the background to this case, see 149 ILR 170 above.
Council Regulation No 881/2002 repealed and replaced Council Regulation (EC) No 467/2001 of 6 March 2001 and Commission Regulation (EC)
No 2062/2001 of 19 October 2001, the annulment of which the applicant had originally sought. Regulation No 467/2001 prohibited the export of certain goods and services to Afghanistan, strengthened the flight ban and extended the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealed Regulation (EC) No 337/2000. By Regulation No 2062/2001, which amended Regulation No 467/2001 for the third time, the applicant's name was added, with others, to Annex I to that regulation.In light of the judgment of the Court of Justice in Kadi and Al Barakaat International Foundation v. Council of the European Union (‘Kadi on appeal’),4 for which proceedings had been stayed, the applicant argued that Regulation No 881/2002 breached his fundamental human rights, infringing his rights of defence, his right to an effective legal remedy and his right to property. The Council requested that the Court dismiss the application but, if it should annul the contested regulation in so far as it concerned the applicant, that its effects be maintained for a brief period as in Kadi on appeal. The United Kingdom maintained that annulment with immediate effect was capable of seriously and irreversibly prejudicing the effectiveness of the restrictive measures imposed by that regulation and which the Community was required to implement.
Held:—The application was allowed. Council Regulation No 881/2002 was annulled.5
(1) With respect to the procedure leading to the adoption of the contested regulation and to the extent, effects and justification, if any, of the restriction of the use of his right to property arising from the restrictive measures laid down by that regulation, the applicant was in a factual and legal situation comparable in every way to that of the appellants in the case giving rise to Kadi on appeal (para. 82).
(2) The applicant's rights of defence, in particular the right to be heard, were not respected. The applicant was not in a position to make his point of view known to advantage since the Council neither communicated to the applicant the evidence used against him to justify the restrictive measures imposed on him nor afforded him the right to be informed of that evidence within a reasonable period after those measures were enacted (paras. 83–5).
(3) The applicant's right to an effective legal remedy had been infringed. Since he had not been informed of the evidence adduced against him and having regard to the relationship between rights of defence and the right to an effective legal remedy, the applicant was unable to defend his rights with regard to that evidence in satisfactory conditions before the Community judicature (para. 86).
(4) Since the infringement had not been remedied in the course of the action, the review of the lawfulness of the contested regulation in so far as it concerned the applicant could not be undertaken. For that reason too, the applicant's fundamental right to an effective legal remedy had not been observed in the circumstances (paras. 87–8).
(5) The contested regulation, in so far as it concerned the applicant, was adopted according to a procedure in which the applicant's rights of defence, and consequently his right to effective judicial protection, had been infringed. It had been adopted without any guarantee being given as to the communication of the inculpatory evidence against him or as to his being heard in that connection (paras. 89–90).
(6) The applicant's right to property had been infringed. In the circumstances of the case, the imposition of the restrictive measures laid down by the contested regulation in respect of the applicant, by including him in the list contained in Annex I to that regulation, constituted an unjustified restriction of his right to property. The regulation was adopted without furnishing any guarantee enabling him to put his case to the competent authorities, in the situation in which the restriction of his property rights must be regarded as significant, having regard to the general application and actual continuation of the restrictive measures affecting him (paras. 91–3).
(7) The danger of serious and irreversible prejudice to the effectiveness of the restrictive measures imposed by the contested regulation, and which the Community was required to implement, did not appear to be sufficiently great in the present case, having regard to their considerable impact on the applicant's rights and freedoms, to justify the maintenance of the effects of the regulation for a period exceeding that laid down in Article 60 of the Statute of the Court of Justice (paras. 95–9).
The following is the text of the judgment of the Court:
1. For a summary of the legal context applicable to this case, reference is made to paras. 3–10 of the judgment of the Court of Justice of 3 September 2008 in Kadi v. EU Council Joined Cases C-402/05P and C-415/05P [2008] ECR I-6351 (Kadi's case on appeal).
2. For a summary of the background to this case, covering the period from 15 October 1999 to 8 March 2001 and encompassing, in particular, the adoption of Council Regulation (EC) 467/2001 (prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealing Regulation (EC) 337/2000) (OJ 2001 L67 p. 1), reference is made to paras. 13–30 of Kadi's case on appeal.
3. On 19 October 2001 the Sanctions Committee established by Resolution 1267 (1999) of the Security Council of the United Nations (the Security Council) published an addendum to its consolidated list of 8 March 2001 of the entities which and persons who must be subjected to the freezing of funds pursuant to Security Council Resolutions 1267 (1999) and 1333 (2000) (see Press Release SC/7180), which included inter alia the name of the applicant, identified as a person associated with Usama bin Laden.
4. By Commission Regulation (EC) 2062/2001 (amending, for the third time, Regulation 467/2001) (OJ 2001 L277 p. 25), the applicant's name was added, with others, to Annex I to that regulation.
5. On 16 January 2002 the Security Council adopted Resolution 1390 (2002), which lays down the measures to be directed against Usama bin Laden, members of the Al-Qaeda organisation and the Taliban and other associated individuals, groups, undertakings and entities. Paragraphs 1 and 2 of that resolution provide, in essence, that the measures, including the freezing of funds, imposed by para. 4(b) of Resolution 1267 (1999) and by para. 8(c) of Resolution 1333 (2000) are to be maintained.
6. Considering that action by the Community was necessary in order to implement that resolution, on 27 May 2002 the Council adopted Common Position 2002/402/CFSP (concerning restrictive measures against Usama bin Laden, members of the Al-Qaeda organisation and the Taliban and other individuals, groups, undertakings and entities associated with them and repealing Common Positions 96/746/CFSP...
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