JUDGMENT OF THE COURT (Grand Chamber)

28 May 2013 ( *1 )

‛Appeal — Common foreign and security policy (CFSP) — Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban — Regulation (EC) No 881/2002 — Action for annulment — Removal of the interested party from the list of persons and entities concerned — Interest in bringing proceedings’

In Case C-239/12 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 13 May 2012,

Abdulbasit Abdulrahim, residing in London (United Kingdom), represented by P. Moser QC and E. Grieves, Barrister, instructed by H. Miller, Solicitor,

appellant,

the other parties to the proceedings being:

Council of the European Union, represented by E. Finnegan and G. Étienne, acting as Agents,

European Commission, represented by E. Paasivirta and G. Valero Jordana, acting as Agents, with an address for service in Luxembourg,

defendants at first instance,

THE COURT (Grand Chamber),

composed of V. Skouris, President, K. Lenaerts, Vice-President, M. Ilešič, L. Bay Larsen, T. von Danwitz, A. Rosas (Rapporteur), G. Arestis, J. Malenovský and E. Jarašiūnas, Presidents of Chambers, E. Juhász, A. Borg Barthet, C. Toader, C.G. Fernlund, J.L. da Cruz Vilaça and C. Vajda, Judges,

Advocate General: Y. Bot,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 11 December 2012,

after hearing the Opinion of the Advocate General at the sitting on 22 January 2013,

gives the following

Judgment

1By his appeal, Mr Abdulrahim requests the Court to set aside the order of the General Court of the European Union of 28 February 2012 in Case T-127/09 Abdulrahim v Council and Commission (‘the order under appeal’), by which the General Court held, in particular, that there was no longer any need to adjudicate on the action which he had brought seeking annulment of Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 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 ( OJ 2002 L 139, p. 9 ), as amended by Commission Regulation (EC) No 1330/2008 of 22 December 2008 ( OJ 2008 L 345, p. 60 ), or of Regulation No 1330/2008.

Legal context and background to the dispute

2On 21 October 2008, Mr Abdulrahim’s name was added to the list drawn up by the Sanctions Committee established by United Nations Security Council Resolution 1267 (1999) of 15 October 1999 on the situation in Afghanistan (‘the Sanctions Committee list’).

3By Regulation No 1330/2008, Mr Abdulrahim’s name was accordingly added to the list of persons and entities whose funds and other economic resources must be frozen under Regulation No 881/2002 (‘the list at issue’).

4Point 1 of the annex to Regulation No 1330/2008 provides the following reasons for adding Mr Abdulrahim’s name to the list:

‘… Other information: (a) …; (b) Involved in fundraising on behalf of the Libyan Islamic Fighting Group [“the LIFG”]; (c) Held senior positions within the LIFG in the United Kingdom; (d) Associated with the Directors of the SANABEL Relief Agency, Ghuma Abd’rabbah, Taher Nasuf and Abdulbaqi Mohammed Khaled and with members of the LIFG in the United Kingdom, including Ismail Kamoka, a senior member of the LIFG in the United Kingdom who has been convicted and sentenced in the United Kingdom in June 2007 based on charges of terrorist funding.’

5By application, the signed original of which was received at the Registry of the Court of First Instance (now ‘the General Court’) on 15 April 2009, Mr Abdulrahim brought an action against the Council of the European Union and the European Commission, seeking essentially: (i) annulment of Regulation No 881/2002, as amended by Regulation No 1330/2008, or of Regulation No 1330/2008, in so far as those acts concern him; and (ii) compensation for the damage allegedly caused by those acts. That action was registered as Case T-127/09.

6In his application, Mr Abdulrahim submitted that neither the Council nor the Commission had explained the reasons for his inclusion on the list at issue. He had not been informed of the evidence used against him and had not been heard in that regard. He argued that the measure freezing funds belonging to him infringed his right to property and to private life and was disproportionate. Finally, Mr Abdulrahim contended that he had never been associated with Usama bin Laden, the Al-Qaida network or the Taliban. Referring to a letter from the Foreign and Commonwealth Office of 5 November 2008 that indicated a link with Al-Qaida through the LIFG, he submitted that, whilst some of the Afghan group of the LIFG joined Al-Qaida in 2007, that was not true of all the members of the group. Mr Abdulrahim stated that, in any event, he ceased to be involved in the LIFG from 2001.

7On 22 December 2010, Mr Abdulrahim’s name was removed from the Sanctions Committee list.

8On 6 January 2011, Mr Abdulrahim’s lawyers wrote to the Commission asking for his name to be removed from the list at issue.

9By Commission Regulation (EU) No 36/2011 of 18 January 2011 amending for the 143rd time Regulation No 881/2002 ( OJ 2011 L 14, p. 11 ), Mr Abdulrahim’s name was removed from the list at issue.

10By letter received at the Registry of the General Court on 27 July 2011, the Commission sent the General Court a copy of Regulation No 36/2011.

11By letter from the Registry of the General Court of 17 November 2011, the parties were requested to express their views in writing on the conclusions to be drawn, especially in the light of the purpose of Mr Abdulrahim’s action, from the adoption of Regulation No 36/2011.

12In their written observations, lodged at the Registry of the General Court on 6 December 2011, the Council and the Commission requested the General Court to declare that the application for annulment had become devoid of purpose and that there was no longer any need to adjudicate in that regard. Those institutions maintained their earlier heads of claim as regards the claim for damages and the costs.

13In his written observations, lodged at the Registry of the General Court on 6 December 2011, Mr Abdulrahim opposed the making of an order declaring that there was no need to adjudicate on the claims for annulment of Regulation No 1330/2008. Relying, inter alia, on paragraphs 46 to 51 of the judgment of 3 April 2008 in Case T-229/02 PKK v Council , he put forward the arguments summarised in paragraph 19 of the order under appeal, to which the General Court responded in that order.

The order under appeal

14The order under appeal was made on the basis of Article 113 of the Rules of Procedure of the General Court, according to which the General Court may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceeding with an action or declare that the action has become devoid of purpose and that there is no need to adjudicate on it.

16In paragraph 24 of the order under appeal, the General Court also recalled the case-law according to which the withdrawal – or, in certain circumstances, the repeal – of the contested act by the defendant institution divests the action for annulment of its purpose, since it leads, for the applicant, to the desired outcome and gives him full satisfaction (see the order of 28 March 2006 in Case T-451/04 Mediocurso v Commission , paragraph 26 and the case-law cited, and the orders of 6 July 2011 in Case T-142/11 SIR v Council , paragraph 18, and in Case T-160/11 Petroci v Council , paragraph 15).

17In paragraph 27 of the order under appeal, the General Court stated that, by Regulation No 36/2011, the Commission had deleted the entry relating to Mr Abdulrahim’s name from the list at issue, an entry originally made by Regulation No 1330/2008. According to the General Court, such a deletion entailed the repeal of Regulation No 1330/2008 in so far as that act concerned Mr Abdulrahim.

18In paragraphs 29 and 30 of the order under appeal, the General Court recalled that it is true that the applicant may, in an action for annulment, retain an interest in the annulment of a measure which is repealed in the course of the proceedings if the annulment of that measure may in itself have legal consequences (orders in Case T-25/96 Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission [1997] ECR II-363 , paragraph 16, and in Case T-184/01 IMS Health v Commission [2005] ECR II-817 , paragraph 38). Where an act is annulled, the institution which adopted it is required under Article 266 TFEU to take the necessary measures to comply with the related judgment. Those measures do not involve the elimination of the act as such from the legal order of the European Union because that is the very essence of its annulment by the Court. They involve, rather, the removal of the effects of the illegalities found in the judgment annulling the act. The institution concerned may thus be required to take adequate steps to restore the applicant to his original situation or to refrain from the adoption of an identical measure (see Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission , paragraph 17 and the case-law cited).

19In paragraph 31 of the order under appeal, the General Court ruled, however, that in the case in point it was not apparent from the case file or Mr Abdulrahim’s arguments that, following the adoption of Regulation No 36/2011, the action for annulment was liable to procure for him an advantage for the purposes of the case-law referred to in paragraph 22 of that order, leading him to retain an interest in bringing proceedings.

20In particular, as regards, first, the fact that the repeal of an act of an institution of the European Union does not amount to recognition of its illegality and takes effect ex nunc , by contrast with a judgment annulling an act, by virtue of which the act annulled is removed retroactively from the legal order of the European Union and deemed never to have existed (see, to that effect, Joined Cases T-481/93 and T-484/93 Exporteurs in Levende Varkens and Others v Commission [1995] ECR II-2941 , paragraph 46), the General Court observed, in paragraph 32 of the order under appeal, that that fact cannot establish an interest on the part of Mr Abdulrahim in securing the annulment of Regulation No 1330/2008.

21In paragraph 33 of the order under appeal, the General Court explained that there is nothing to indicate that the removal ex tunc of Regulation No 1330/2008 would procure any advantage for Mr Abdulrahim. In particular, there is nothing to establish that, in the event of a judgment annulling that regulation, the Commission would be required, pursuant to Article 266 TFEU, to adopt measures designed to remove the effects of the illegality held to exist.

22In paragraph 34 of the order under appeal, the General Court further stated that recognition of the alleged illegality itself may admittedly constitute one of the forms of reparation sought through a claim for damages under Articles 268 TFEU and 340 TFEU. On the other hand, according to the General Court, such recognition is not sufficient to establish a continuing interest in bringing proceedings under Articles 263 TFEU and 264 TFEU for the annulment of acts of the institutions. Were the position otherwise, an applicant would continue to retain an interest in seeking the annulment of an act, notwithstanding its withdrawal or repeal, and that would be incompatible with the case-law referred to in paragraphs 24 and 29 of the order under appeal and recalled in paragraphs 16 and 18 respectively of the present judgment.

23With regard to its case-law according to which an applicant may retain an interest in securing the annulment of a decision imposing restrictive measures which has been repealed and replaced (see to that effect, in addition to PKK v Council , paragraphs 46 to 51, Case T-228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II-4665 , paragraph 35; the judgment of 11 July 2007 in Case T-327/03 Al-Aqsa v Council , paragraph 39; and Case T-256/07 People’s Mojahedin Organization of Iran v Council [2008] ECR II-3019 , paragraph 48), the General Court held, in paragraph 35 of the order under appeal, that that case-law was developed in a specific context which differs from that in the case in point. Unlike Regulation No 1330/2008, the acts at issue in those cases had not only been repealed, but had also been replaced by new acts, and the restrictive measures relating to the entities concerned had been maintained. The original effects of the acts which had been repealed thus continued, in relation to the entities concerned, through the acts which replaced them. Here, however, according to the General Court, Regulation No 36/2011 quite simply removes Mr Abdulrahim’s name from the list at issue, thereby implicitly repealing Regulation No 1330/2008 in so far as it concerns him, but not replacing the measures laid down by it. The effects produced by Regulation No 1330/2008 do not therefore persist vis-à-vis Mr Abdulrahim. In addition, according to the General Court, that case-law is based on the difference between the effects of the repeal of an act and the effects of its annulment, a factor which is not relevant here, as is apparent from paragraph 32 of the order under appeal.

24In paragraph 36 of the order under appeal, the General Court stated that the above distinction is confirmed by the judgment in Joined Cases C-399/06 P and C-403/06 P Hassan and Ayadi v Council and Commission [2009] ECR I-11393 . Firstly, instead of concluding automatically that the applicants concerned retained an interest in bringing proceedings in the cases which gave rise to that judgment, the Court of Justice raised, of its own motion, in paragraph 57 of the judgment, the question whether, in the light of the withdrawal of the contested regulation and its retroactive replacement by another act, it was still necessary to adjudicate on the cases concerned. Secondly, in paragraphs 59 to 63 of that judgment, the Court of Justice pointed out a certain number of particular circumstances in the cases before it, which led it to conclude, in paragraphs 64 and 65 of the judgment, that, ‘in these particular circumstances’, and in contrast to what had been held in the order in Case C-123/92 Lezzi Pietro v Commission [1993] ECR I-809 , the adoption of the new act, and the concomitant repeal of the regulation at issue, could not be regarded as equivalent to the annulment, pure and simple, of that regulation. Those particular circumstances do not, however, according to the General Court, obtain in the case in point. More specifically, in the case in point, Regulation No 36/2011 is definitive inasmuch as it may no longer be the subject of an action for annulment. Consequently, it is inconceivable that Regulation No 1330/2008 might come back into force so far as Mr Abdulrahim is concerned, contrary to the finding made by the Court of Justice in paragraph 63 of Hassan and Ayadi v Council and Commission .

25As regards, secondly, the fact that an applicant may retain an interest in seeking the annulment of an act of a European Union institution in order to prevent its alleged unlawfulness recurring in the future, the General Court recalled, in paragraph 37 of the order under appeal, that such an interest in bringing proceedings, which follows from the first paragraph of Article 266 TFEU, can exist only if the alleged unlawfulness is liable to recur in the future independently of the circumstances of the case which gave rise to the action ( Wunenburger v Commission , paragraphs 51 and 52). In the case in point, however, according to the General Court, there was nothing in the file to suggest that this might happen. On the contrary, as Regulation No 36/2011 was adopted in view of the specific circumstances of Mr Abdulrahim and, apparently, of developments in the situation in Libya, the General Court considered that it did not appear likely that the alleged unlawfulness might recur in the future independently of the circumstances which had given rise to the action.

27As regards, fourthly, the possibility that detrimental consequences might, as the case may be, follow from the alleged unlawfulness of Regulation No 1330/2008, the General Court pointed out, in paragraph 39 of the order under appeal, that the application made by the defendant institutions for a declaration that there was no need to adjudicate related only to the claims for annulment of that regulation. Mr Abdulrahim could therefore still seek compensation for the damage which, in his claim for damages under Article 268 TFEU and the second and third paragraphs of Article 340 TFEU, he purported to have sustained.

28As regards, fifthly and lastly, the argument relating to the alleged need to secure a decision on the merits of the action for the purposes of the recovery of the costs incurred by Mr Abdulrahim, the General Court referred in paragraph 40 of the order under appeal to its decision on costs.

29The General Court concluded, in paragraph 41 of the order under appeal, that there was no longer any need to adjudicate on the claims for annulment of Regulation No 1330/2008.

30As for the claim for damages, the General Court considered that it appeared to be manifestly lacking any foundation in law – or even to be manifestly inadmissible – in the light of the procedural documents, the information in the case-file and the explanations provided by the parties in their written pleadings.

31After recalling, in paragraph 45 of the order under appeal, the conditions necessary for the European Union to incur non-contractual liability on account of unlawful conduct on the part of its institutions, the General Court held, in paragraph 48 of the order, that the damage was neither quantified nor proven.

32The General Court also held, in paragraph 52 of the order under appeal, that the causal link between the acts at issue in the case and the alleged damage was not established, since the direct and immediate cause of the material damage purportedly sustained by Mr Abdulrahim, arising from the unavailability of his funds, financial assets and other economic resources and consisting in his being deprived of their use, was not the adoption of those acts, but the adoption of earlier decisions, that is to say, the Sanctions Committee’s decision of 21 October 2008 adding his name to its list and the United Kingdom authorities’ decision adopting restrictive measures in his regard.

Forms of order sought on appeal

33Mr Abdulrahim claims that the Court should:

—

set aside the order under appeal;

—

declare that his action for annulment was not devoid of purpose;

—

refer the case back to the General Court for it to determine the action for annulment; and

—

order the Commission to pay the costs of this appeal and the costs in the General Court, including the costs of making representations upon the General Court’s invitation.

34The Council and the Commission contend that the Court should dismiss the appeal and order Mr Abdulrahim to pay the costs.

The appeal

35In support of his appeal, Mr Abdulrahim asserts his right to an effective remedy and to effective judicial protection. In addition to the Court’s case-law (Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677 , paragraphs 38 and 39, and Case C-229/05 PKK and KNK v Council [2007] ECR I-439 , paragraphs 76 and 77), he relies upon Articles 47 and 52(3) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and upon Article 7 of the Charter, a provision which is equivalent to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), and which provides that everyone has the right to respect for his or her private and family life, home and communications.

36More specifically, Mr Abdulrahim relies, in support of his arguments, upon two pleas in law, the first of which is in three parts.

First plea

First part of the first plea: error of law committed by the General Court in failing to hear the Advocate General

37Mr Abdulrahim contends that, in failing to hear the Advocate General before giving its decision, the General Court infringed Article 114(4) of its Rules of Procedure, which is referred to by Article 113 thereof on the basis of which the order under appeal was adopted.

39Since no Advocate General was designated for the purpose of dealing with the action brought by Mr Abdulrahim before the General Court, which was assigned to its Second Chamber, there was no obligation to hear an Advocate General before declaring that there was no longer any need to adjudicate.

40Consequently, the first part of the first plea is unfounded.

Second part of the first plea: breach of the right to a fair hearing

41Mr Abdulrahim contends that, by failing to invite him to make representations relating to the need for the oral part of the procedure, the General Court infringed the right to a fair hearing. He points out that Article 120 of the Rules of Procedure of the Court of Justice, in the version applicable on the date when the appeal was brought, provides that a party may make representations prior to any decision being taken as to whether there is an oral part of the procedure. In Mr Abdulrahim’s submission, there is no justification for a different approach before the General Court and Article 114 of the Rules of Procedure of the General Court, as interpreted by the latter, does not comply with Article 47 of the Charter.

42It must be pointed out that the application of Article 113 of the Rules of Procedure of the General Court does not guarantee that an oral procedure will be opened, as the General Court may, under Article 114(3) of its Rules of Procedure, to which Article 113 refers, give its decision following a solely written procedure (Case C-547/03 P AIT v Commission [2006] ECR I-845 , paragraph 35, and Case C-417/04 P Regione Siciliana [2006] ECR I-3881 , paragraph 37).

44Accordingly, contrary to Mr Abdulrahim’s assertions, the General Court did not infringe the right to a fair hearing guaranteed by Article 47 of the Charter by requesting him to express his views on whether the action retained a purpose and by not asking him whether it was desirable to open the oral part of the procedure.

45It follows from the foregoing that the second part of the first plea is unfounded.

Third part of the first plea: error of law committed by the General Court in failing to open the oral part of the procedure

46By the third part of the first plea, Mr Abdulrahim submits that the General Court erred in law by failing to open the oral part of the procedure. He contends that it is only in exceptional circumstances that the General Court has the option of omitting the oral part of the procedure, which is an important component of the means available to an applicant to advance his case effectively. In Mr Abdulrahim’s submission, the oral part of the procedure should be dispensed with only in cases which raise no crucial issue of law and/or fact. He notes that, following the response which he sent to the General Court relating to the retention of his interest in bringing proceedings, and the short observations of the Council and of the Commission, the General Court moved straight to judgment.

47Mr Abdulrahim contends that almost the entirety of the General Court’s reasoning comprises issues and case-law which were not subject to discussion and concerning which he has had no opportunity to be heard either in writing or orally. Leaving aside the case-law cited by the General Court, the latter in particular raised factual issues concerning the situation in Libya and the fact that it does not appear likely that the alleged unlawfulness may recur in the future.

48As the Commission points out, the General Court could, in accordance with Articles 113 and 114(3) of its Rules of Procedure, make the order under appeal without opening the oral part of the procedure, since it considered that it had sufficient information and Mr Abdulrahim had had the opportunity – of which he, moreover, made use – to present, at the request of the General Court, his written observations on the claims of the defendant institutions that there was no need to adjudicate, and thereby to put forward the arguments on the basis of which he opposed those claims.

50It follows from the foregoing that the third part of the first plea is likewise unfounded and that, therefore, the first plea cannot be upheld.

Second plea: error of law committed by the General Court in holding that the action had become devoid of purpose

Arguments of the parties

51Mr Abdulrahim contends that the General Court applied too high a test for the concept of an interest in bringing proceedings. In his submission, an action is not to be declared devoid of purpose if the slightest prejudice suffered is capable of being remedied by continuing to examine that action, since that procures an advantage for the applicant. In the case in point, he considers that his action for annulment is capable of ending the continuous breach of his right, referred to in Article 8 of the ECHR, to respect for his private and family life, of restoring his reputation, of removing bars to employment and travel, and of removing the effects of his inclusion on the list at issue on him in that it affects and restricts his family.

52He submits that the General Court erred in law and misapplied the test of advantage from the annulment in paragraph 33 of the order under appeal, by making the existence of an advantage dependent upon the adoption by the Commission and/or the Council, pursuant to Article 266 TFEU, of measures designed to remove the effects of the illegality held to exist. In certain situations, annulment of an act does not require the adoption of any subsequent measure. Nor can a declaration of nullity be dependent on whether the author of the act is required to act subsequently in a certain way.

53According to Mr Abdulrahim, the General Court’s decision infringes the procedural guarantee, flowing from Article 8 of the ECHR, that he must be able to challenge the assertions made against him so that the prejudice caused by the institution is rectified. Acceptance that there is no interest in bringing proceedings would enable the Commission, through repealing the contested measure, to circumvent review by the Courts of the European Union, which is inconsistent with the principle of the rule of law and would remove accountability of that institution.

54Mr Abdulrahim states that the General Court accepts that, notwithstanding a lack of prejudice, the possibility of future repetition of the illegality is sufficient for it to be considered that an interest in the proceedings is retained ( Wunenburger v Commission , paragraphs 58 and 59). He submits that, here, the breach of Article 8 of the ECHR is based upon the use of material obtained through torture. However, the General Court ignored the systemic nature of the irregularities relied upon in support of his action, which are liable to be repeated. He therefore has a clear interest in this point being adjudicated upon since it provides the basis for his designation as a person associated with a terrorist organisation.

55In any event, Mr Abdulrahim considers that, having regard to the fact that the political situations that give rise to restrictive measures such as those laid down by Regulation No 1330/2008 change rapidly, the General Court’s approach is particularly worrying. No reasons are stated for the removal of his name from the list at issue and the General Court is not able to conclude that he will not be entered on that list again. His inclusion on that list could be relied upon as a basis, or in support, of any future application by a Member State to have him relisted. Finally, the impact of fast-changing political situations cannot be ruled out, as accepted by the General Court by reference to the situation in Libya.

56The Council and the Commission point out that Mr Abdulrahim sought the lifting of the restrictive measures concerning him and that the adoption of Regulation No 36/2011 had that effect. They recall in this connection the case-law according to which an interest in obtaining the annulment of a repealed measure presupposes that the annulment of that measure may in itself have legal consequences.

57In that regard, the Council and the Commission contest Mr Abdulrahim’s arguments that he retains an interest in bringing proceedings on account of restoration of his reputation and prevention of his reinclusion on the list at issue. The Commission notes that a judgment could not have referred to the time before 22 December 2008, the date upon which Mr Abdulrahim was included on the list at issue. Furthermore, in his action Mr Abdulrahim raised pleas concerning infringement of rights of the defence, of the right to judicial protection and of his right to property, but he did not plead that there was an error of assessment as to whether or not he was associated with Al-Qaida. In those circumstances, a judgment annulling Regulation No 1330/2008 on the basis of procedural pleas would not have had the effect of rehabilitating him.

58The Council and the Commission also submit that the absence of a judgment by the General Court on the merits does not represent a risk that the inclusion of Mr Abdulrahim on the list will come back into force. Council Regulation (EU) No 1286/2009 of 22 December 2009 amending Regulation No 881/2002 ( OJ 2009 L 346, p. 42 ) inserted into Regulation No 881/2002 Article 7a, under which a new listing decision can be taken only if the Commission obtains a statement of reasons from the United Nations Security Council, which it must communicate to the person concerned without delay after adoption of its listing decision so that that person may put forward his observations for the purposes of any review by the Commission of its decision. In the case in point, the decision of the United Nations Security Council to remove Mr Abdulrahim from the Sanctions Committee list leaves no doubt that he will not be re-entered on that list in the absence of a change in the factual circumstances. Moreover, a judgment by the General Court would have no bearing on the Security Council’s decision to remove Mr Abdulrahim from that list in December 2010.

59As regards the systemic nature of the alleged unlawful acts, the Council and the Commission reiterate that the action for annulment concerned solely Mr Abdulrahim’s inclusion on the list at issue and that an annulment would have concerned only him. The question of a systemic effect therefore does not arise.

60The Council and the Commission dwell, finally, upon the distinction between the present case and those which gave rise to the judgment in PKK v Council and to the other judgments cited in the appeal. They point out that in those cases the applicants were still listed when their applications for annulment were decided upon, whereas here Mr Abdulrahim’s name had been removed from the list at issue. The Commission also compares the present case with the case which gave rise to the judgment in Case C-27/09 P France v People’s Mojahedin Organization of Iran [2011] ECR I-13427 , paragraphs 43 to 50, in which the French Republic considered that the appeal still had a purpose because it maintained that the decision to include the People’s Mojahedin Organization of Iran in the list set out in the annex to Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism ( OJ 2001 L 344, p. 93 ) should be retained in the European Union legal order. In the case in point, there is no dispute between Mr Abdulrahim and the Commission regarding his removal from the list at issue.

Findings of the Court

Referral of the case back to the General Court

On those grounds, the Court (Grand Chamber) hereby:

1.Sets aside the order of the General Court of the European Union of 28 February 2012 in Case T-127/09 Abdulrahim v Council and Commission in so far as the order decides that there is no longer any need to adjudicate on the action for annulment brought before the General Court by Mr Abdulbasit Abdulrahim;

2.Refers the case back to the General Court of the European Union for it to rule again on Mr Abdulbasit Abdulrahim’s action for annulment;

3.Reserves the costs.

[Signatures]

( *1 ) Language of the case: English.