Is the GST Council a legal entity

EUR-Lex Access to European Union law

OPINION OF ADVOCATE GENERAL

ELEANOR SHARPSTON

of 14 July 2011 (1)

Case C ‑ 27/09 P

French Republic

against

People’s Mojahedin Organization of Iran

"Legal Remedies - Restrictive Measures to Combat Terrorism - Freezing of Funds and Capital"





Table of Contents

introduction

legal framework

Union law

Human rights regulations

prehistory

PMOI

Events immediately before and including the adoption of the contested decision

Contested judgment

Legal remedies

To admissibility

Down to business

First ground of appeal (complaint of violation of the rights of the defense)

The procedure leading to the adoption of the contested decision: 1. Period from May 7, 2008 to June 9, 2008

The procedure leading to the adoption of the contested decision: 2. Period from June 9, 2008 to July 15, 2008

Requirement to inform the PMOI

The second and third grounds of appeal

Second ground of appeal (complaint of a breach of Article 1 (4) of Common Position 2001/931)

Third ground of appeal (complaint of violation of the right to effective judicial protection)

First argument: the information withheld was not relevant to the decision

Second argument: classification of the information withheld as confidential

- On the role of the national authorities of the Member States

Regarding the procedure in the Council

- On the case that the competent authority is a “judicial authority”

- On the case where the national competent authority is an “appropriate competent authority”

Regarding the court's rules of procedure

- Scope

- Use of protected evidence

- Respect for human rights guarantees in force in the Union

- Type and intensity of the control to be carried out by the Union judge

Final remark

costs

Result

 introduction

1. By its appeal, the French Republic seeks the Court of Justice to set aside the judgment of the Court of First Instance (now: General Court (2) of 4 December 2008 in People's Mojahedin Organization of Iran v Council (3) (hereinafter: the judgment under appeal) ).

2. With this judgment, the court annulled Decision 2008/583 / EC of the Council (4) (hereinafter: the contested decision) insofar as it concerns the People’s Mojahedin Organization of Iran (hereinafter: PMOI). As a result of this decision, the PMOI's funds and other financial assets or economic resources remained frozen in the Union.

3. The processes preceding the delivery of the judgment under appeal are complex. To make it easier to understand, I have listed the main events in the main body of this Opinion and attached a detailed chronology separately in an annex.

4. The development of the legal dispute must be seen against the background of the considerable intensification of international terrorism in recent years and the reaction on the part of the United Nations and the Union to the threat that terrorism has and continues to pose.

 legal framework

5. On September 28, 2001, the United Nations Security Council adopted Resolution 1373 (2001). Clause 1 of this resolution stipulates that “all states ... c) immediately try to commit funds and other financial assets or economic resources from persons who commit terrorist acts, or participate in them or facilitate them, as well as from institutions that directly or are indirectly owned or controlled by such persons, and will be frozen by persons and entities acting on behalf of or at the direction of such persons and entities… ”.

 Union law

6. As part of the arrangements for implementing resolution 1373 (2001) in the Union, the Council adopted Common Position 2001/931 (5) on 27 December 2001.

7. The seventh recital of Common Position 2001/931 reads:

“The community needs to act to implement some of these additional measures. The Member States must also take action, in particular with regard to the use of forms of police and judicial cooperation in criminal matters. "

8. Article 1 of Common Position 2001/931 provides:

“1. This Common Position shall apply, in accordance with the provisions of the Articles below, to the persons, groups and entities listed in the Annex who are involved in acts of terrorism.

(2) For the purpose of this Common Position, the term `` persons, groups and entities involved in acts of terrorism '' means:

- Persons who commit, attempt to commit, or participate in, or facilitate, terrorist acts;

- Associations or corporations owned, directly or indirectly, by these persons or under their control; furthermore, persons, associations and corporations who act on behalf of or on the instructions of these persons, associations and corporations, including monies that originate or arise from assets that are directly or indirectly owned by these persons and persons, groups and corporations associated with them or is under their control.

(3) For the purposes of this Common Position, the term `` terrorist act '' means any of the willful acts listed below which, by its nature or context, is capable of serious harm to a country or international organization and is defined as a criminal offense under national law if it is committed with the aim of

i) Seriously intimidating the population, or

ii) to unjustifiably compel a government or an international organization to do or not to act; or

iii) Seriously destabilize or destroy the basic political, constitutional, economic or social structures of a country or an international organization:

a) Attacks on the life of a person that can lead to death;

b) Attacks on the physical integrity of a person;

c) kidnapping or hostage-taking;

d) Widespread destruction of a government facility or a public facility, a transport system, an infrastructure, including a computer system, a fixed platform located on the continental shelf, a generally accessible place or private property, which endangers human life or leads to significant economic loss can;

e) capturing aircraft and watercraft or other public transport or goods transport;

f) Manufacture, possession, acquisition, transport or supply or use of firearms, explosives, nuclear weapons, biological and chemical weapons and research and development relating to biological and chemical weapons;

g) Release of dangerous substances or causing a fire, an explosion or a flood if this puts human life at risk;

h) tampering with or disrupting the supply of water, electricity or other vital natural resources if this would put people's lives at risk;

i) Threatening of the commission of one of the offenses mentioned under letters a) to h);

j) leading a terrorist group;

k) Participation in the activities of a terrorist group, including by providing information or material means or by any form of funding for its activities, knowing that such participation is contributing to the criminal activities of the group.

For the purposes of this paragraph, the term “terrorist group” means a long-term organized association of more than two persons acting by appointment to commit acts of terrorism. The term “organized association” means an association which is not formed by chance for the direct commission of a terrorist act and which does not necessarily have formal roles for its members, continuous membership or a distinctive structure.

(4) The list in the annex is drawn up on the basis of precise information or the relevant files, from which it can be seen that a competent authority - based on serious and conclusive evidence or circumstantial evidence - takes a decision vis-à-vis the persons, associations or bodies concerned which involves the opening of an investigation or prosecution for or attempt to commit a terrorist act, to participate in it or to facilitate it, or a conviction for such acts. Persons, groups and entities that the United Nations Security Council has identified as having a connection with terrorism or against whom it has imposed sanctions may be included in the list.

For the purposes of this paragraph, the term `` competent authority '' means a judicial authority or, if the judicial authorities do not have jurisdiction in the area covered by this paragraph, an equivalent competent authority in that area.