El-Qaddafi v Council (Common foreign and security policy - Restrictive measures taken in view of the situation in Libya - Judgment) [2021] EUECJ T-322/19 (21 April 2021)

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(Common foreign and security policy – Restrictive measures taken in view of the situation in Libya – Freezing of funds – List of persons, entities and bodies subject to the freezing of funds and economic resources – Restrictions on entry into and transit through the territory of the European Union – List of persons subject to restrictions on entry into and transit through the territory of the European Union – Retention of the applicant’s name on the lists – Period allowed for commencing proceedings – Admissibility – Obligation to state reasons – Error of assessment)

Aisha Muammer Mohamed El-Qaddafi, residing in Muscat (Oman), represented by S. Bafadhel, Barrister,

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

APPLICATION, first, pursuant to Article 263 TFEU for annulment of (i) Council Implementing Decision (CFSP) 2017/497 of 21 March 2017 implementing Decision (CFSP) 2015/1333 concerning restrictive measures in view of the situation in Libya (OJ 2017 L 76, p. 25), and Council Implementing Decision (CFSP) 2020/374 of 5 March 2020 implementing Decision (CFSP) 2015/1333 concerning restrictive measures in view of the situation in Libya (OJ 2020 L 71, p. 14), in so far as they maintain the applicant’s name on the lists in Annexes I and III to Council Decision (CFSP) 2015/1333 of 31 July 2015 concerning restrictive measures in view of the situation in Libya, and repealing Decision 2011/137/CFSP (OJ 2015 L 206, p. 34), and (ii) Council Implementing Regulation (EU) 2017/489 of 21 March 2017 implementing Article 21(5) of Regulation (EU) 2016/44 concerning restrictive measures in view of the situation in Libya (OJ 2017 L 76, p. 3), and Council Implementing Regulation (EU) 2020/371 of 5 March 2020 implementing Article 21(5) of Regulation (EU) 2016/44 concerning restrictive measures in view of the situation in Libya (OJ 2020 L 71, p. 5), in so far as they maintain the applicant’s name on the list in Annex II to Council Regulation (EU) 2016/44 of 18 January 2016 concerning restrictive measures in view of the situation in Libya and repealing Regulation (EU) No 204/2011 (OJ 2016 L 12, p. 1); and, second, pursuant to Article 265 TFEU for a declaration that the Council unlawfully failed to notify the acts in question to the applicant at the time of their adoption,

composed of D. Spielmann, President, U. Öberg and O. Spineanu-Matei (Rapporteur), Judges,

having regard to the written part of the procedure and further to the hearing on 20 October 2020,

1 The applicant, Ms Aisha Muammer Mohamed El-Qaddafi, is a Libyan national and the daughter of former Libyan leader Mr Muammar Qadhafi.

2 On 26 February 2011, the United Nations Security Council (‘the Security Council’) adopted Resolution 1970 (2011), which introduced restrictive measures against Libya and against persons and entities involved in serious human rights abuses against persons, including by being involved in attacks, in violation of international law, on civilian populations and facilities.

3 On 28 February and 2 March 2011, the Council of the European Union adopted Decision 2011/137/CFSP concerning restrictive measures in view of the situation in Libya (OJ 2011 L 58, p. 53), and Regulation (EU) No 204/2011 concerning restrictive measures in view of the situation in Libya (OJ 2011 L 58, p. 1) (together, ‘the 2011 acts’).

4 Article 5(1)(a) of Decision 2011/137 provides that Member States are to take the necessary measures to prevent the entry into, or transit through, their territories of persons covered by Resolution 1970 (2011) or designated in accordance with that resolution, as listed in Annex I to that decision.

5 Article 6(1)(a) of Decision 2011/137 and Article 5(1) of Regulation No 204/2011, read in conjunction with Article 6(1) of that regulation, provide, in essence, that funds, other financial assets and economic resources belonging to, owned, held or controlled directly or indirectly by persons designated by the Security Council or by the Security Council committee set up pursuant to paragraph 24 of Resolution 1970 (2011) (‘the Sanctions Committee’), in accordance with paragraph 22 of Resolution 1970 (2011), as listed, respectively, in Annex III to that decision and in Annex II to that regulation, are to be frozen.

6 The applicant is among the persons covered by Resolution 1970 (2011) and thus included on the lists in Annexes I and III to Decision 2011/137 and Annex II to Regulation No 204/2011, with the following identifying information and statement of reasons:

‘QADHAFI, Aisha Muammar[.] Date of birth: 1978. Place of birth: Tripoli, Libya. Daughter of Muammar QADHAFI. Closeness of association with regime. Date of UN designation: 26 [February] 2011.’

7 On 17 March 2011, the Security Council adopted Resolution 1973 (2011), which introduced new measures in view of the situation in Libya. On 22 January 2013, the Council adopted Implementing Regulation (EU) No 50/2013 implementing Article 16(2) of Regulation No 204/2011 (OJ 2013 L 20, p. 29) and Council Decision 2013/45/CFSP amending Decision 2011/137/CFSP (OJ 2013 L 20, p. 60), which amended the applicant’s identifying information in the 2011 acts to state that the applicant was believed to be in Algeria.

8 On 23 June 2014, the Council adopted Decision 2014/380/CFSP amending Decision 2011/137 (OJ 2014 L 183, p. 52), and Implementing Regulation (EU) No 689/2014 implementing Article 16(2) of Regulation No 204/2011 (OJ 2014 L 183, p. 1) (together, ‘the 2014 acts’). The amendments made by those acts did not relate to the applicant, whose name was therefore maintained on the lists in Annexes I and III to Decision 2011/137 and Annex II to Regulation No 204/2011, without any amendment to the statement of reasons for the inclusion of her name on those lists, as set out in the 2011 acts.

9 On 27 August 2014, the Security Council adopted Resolution 2174 (2014), which condemned the ongoing fighting by armed groups and incitement to violence in Libya, and introduced further restrictive measures against persons and entities engaged in or providing support for acts that threatened the peace, stability or security of Libya, or obstructed or undermined the successful completion of its political transition.

10 By application lodged at the General Court Registry on 18 September 2014, the applicant brought an action, registered as Case T‑681/14, for annulment of the 2014 acts in so far as they maintained the applicant’s name on the lists in Annexes I and III to Decision 2011/137 and Annex II to Regulation No 204/2011.

11 On 18 December 2014, the Council sent a letter to the applicant’s representatives in which it stated that the Sanctions Committee had informed the relevant departments of the European Union that the applicant had failed to comply with its travel ban, thereby infringing the provisions of Resolution 1970 (2011).

12 On 27 March 2015, the Security Council adopted Resolution 2213 (2015), which, inter alia, provided for certain amendments to the listing criteria.

13 On 4 May 2015, the Council sent a letter to the applicant’s representatives together with a set of documents (‘the letter of 4 May 2015’), in which the Council noted that, in 2011 and 2013, the applicant had made public statements calling for the overthrow of the Libyan authorities established following the fall of her father’s regime, and for revenge for his death.

14 On 26 May 2015, the Council adopted Decision (CFSP) 2015/818 amending Decision 2011/137 (OJ 2015 L 129, p. 13), and Regulation (EU) 2015/813 amending Regulation No 204/2011 (OJ 2015 L 129, p. 1), with the aim, inter alia, of extending the criteria for the designation of persons and entities to be subject to the restrictive measures set out in the 2011 acts.

15 The Council subsequently carried out a full review of the lists of persons and entities included in the annexes to the 2011 acts.

16 That review culminated in the adoption, on 31 July 2015, of Council Decision (CFSP) 2015/1333 concerning restrictive measures in view of the situation in Libya, and repealing Decision 2011/137 (OJ 2015 L 206, p. 34), and, on 18 January 2016, of Council Regulation (EU) 2016/44 concerning restrictive measures in view of the situation in Libya and repealing Regulation No 204/2011 (OJ 2016 L 12, p. 1).

17 Article 8(1) of Decision 2015/1333 provides that Member States are to take the necessary measures to prevent the entry into, or transit through, their territories of persons designated and subjected to travel restrictions by the Security Council or by the Sanctions Committee in accordance with paragraph 22 of Resolution 1970 (2011), paragraph 23 of Resolution 1973 (2011), paragraph 4 of Resolution 2174 (2014) and paragraph 11 of Resolution 2213 (2015) of the Security Council, as listed in Annex I to that decision.

18 Article 9(1) of Decision 2015/1333 and Article 5(1) of Regulation 2016/44, read in conjunction with Article 6(1) of that regulation, provide, in essence, that the funds, the other financial assets and the economic resources belonging to, owned, held or controlled, directly or indirectly, by persons designated and subjected to an asset freeze by the Security Council or by the Sanctions Committee in accordance with paragraph 22 of Resolution 1970 (2011), paragraphs 19, 22 or 23 of Resolution 1973 (2011), paragraph 4 of Resolution 2174 (2014) and paragraph 11 of Resolution 2213 (2015) of the Security Council, as listed in Annex III to that decision and in Annex II to that regulation, are to be frozen.

19 The applicant was included in the lists in Annexes I and III to Decision 2015/1333 and in Annex II to Regulation 2016/44 (‘the lists at issue’), with the following identifying information and statement of reasons:

‘… AISHA MUAMMAR MUHAMMED ABU MINYAR QADHAFI … [Date of birth]: 1978[.] [Place of birth]: Tripoli, Libya[.] Good quality a.k.a.: Aisha Muhammed Abdul Salam … Address: Sultanate of Oman (Believed status/location: Sultanate of Oman)[.] Listed on: 26 Feb. 2011[.] Other information: Listed pursuant to paragraphs 15 and 17 of resolution 1970 [(2011)] (Travel Ban, Asset Freeze). Additional information: Closeness of association with regime. Travelled in violation of paragraph 15 of resolution 1970 [(2011)], as described by the Panel of Experts on Libya in its 2013 Interim Report.’

20 By a letter of 6 October 2016 sent to the Council by the applicant’s lawyer (‘the letter of 6 October 2016’), the latter informed the Council that, following the death of the applicant’s previous lawyer, the applicant had stated that she wished to continue to be represented by her and by one of her colleagues, as evidenced by the power of attorney attached to her letter, and that, consequently, all further correspondence should be sent to her.

21 On 21 March 2017, the Council adopted Implementing Decision (CFSP) 2017/497 implementing Decision 2015/1333 (OJ 2017 L 76, p. 25), and Implementing Regulation (EU) 2017/489 implementing Article 21(5) of Regulation 2016/44 (OJ 2017 L 76, p. 3) (together, ‘the 2017 acts’), which amend the lists at issue in order to reflect updated information provided by the Sanctions Committee.

22 The applicant’s name was maintained on the lists at issue with the following identifying information and statement of reasons:

‘AISHA … MUAMMAR MUHAMMED … ABU MINYAR … QADHAFI … [Date of birth]: 1978[.] [Place of birth]: Tripoli, Libya[.] Good quality a.k.a.: Aisha Muhammed Abdul Salam … Address: Sultanate of Oman (Believed status/location: Sultanate of Oman)[.] Listed on: 26 Feb. 2011 (amended on 11 Nov. 2016, 26 Sep. 2014, 21 Mar. 2013, 2 Apr. 2012)[.] Other information: Listed pursuant to paragraphs 15 and 17 of resolution 1970 [(2011)] (Travel Ban, Asset Freeze). INTERPOL-UN Security Council Special Notice web link: https://www.interpol.int/en/notice/search/un/5525815’.

23 By its judgment of 28 March 2017, El-Qaddafi v Council (T‑681/14, not published, EU:T:2017:227), which became final, no appeal having been brought, the General Court, ruling on the action brought by the applicant against the 2014 acts (see paragraph 10 above), held that the condition requiring the Council to notify the applicant of the actual and specific reasons why it considered that the restrictive measures had to be maintained in her case was not satisfied in that instance. First, it found that the 2014 acts merely contained information corresponding to the reasons for the original entry of the applicant’s name on the relevant lists annexed to the 2011 acts, and held that those reasons were insufficient to justify her retention on those lists since the context was substantially different; second, it found that the additional grounds advanced by the Council were manifestly irrelevant inasmuch as they were not among the reasons on the basis of which the 2014 acts had been adopted and that they had been brought to the Council’s attention after the date of the adoption of those acts. It therefore annulled the 2014 acts in so far as they maintained the applicant’s name on the lists in Annexes I and III to Decision 2011/137 and Annex II to Regulation No 204/2011.

24 On 5 February 2019, the applicant’s lawyer contacted the Council to reiterate her request that she be notified of all correspondence concerning the applicant as well as decisions and regulations adopted with regard to the applicant.

25 On 25 March 2019, by a letter sent by the Council to the applicant’s lawyer (‘the letter of 25 March 2019’), the Council informed her that it had adopted the 2017 acts on the basis of updated information from the Sanctions Committee, and that the applicant’s name had therefore been maintained on the lists at issue.

26 On 11 February 2020, the Security Council adopted Resolution 2509 (2020), in which it reaffirmed the need for States to adopt measures prohibiting entry into, or transit through, their territories against all persons designated by the Sanctions Committee, in accordance, in particular, with paragraphs 15 and 16 of Resolution 1970 (2011), and reaffirmed its intention to ensure that assets frozen pursuant to paragraph 17 of that resolution are, at a later stage, made available to and for the benefit of the Libyan people.

27 On 5 March 2020, the Council adopted Implementing Decision (CFSP) 2020/374 implementing Decision 2015/1333 (OJ 2020 L 71, p. 14), and Implementing Regulation (EU) 2020/371 implementing Article 21(5) of Regulation 2016/44 (OJ 2020 L 71, p. 5) (together, ‘the 2020 acts’), by which the applicant’s name was maintained on the lists at issue, without any amendment to the statement of reasons for the applicant’s designation, as set out in the 2017 acts.

28 The applicant brought the present action by application lodged at the Court Registry on 27 May 2019.

30 The reply and the rejoinder were lodged at the Court Registry on 4 October and 28 November 2019, respectively.

31 Following a change in the composition of the Chambers of the Court, pursuant to Article 27(5) of the Rules of Procedure of the General Court, the case was allocated to the Fifth Chamber.

32 By document lodged at the Court Registry on 24 December 2019, the applicant requested that a hearing be held.

33 By decision of the President of the General Court of 22 January 2020, the present case was assigned to a new Judge-Rapporteur, the Judge-Rapporteur initially designated having been prevented from acting.

34 The Court adopted measures of organisation of procedure, with which the parties complied within the period prescribed.

35 By separate document lodged at the Court Registry on 1 September 2020, the applicant modified the application, on the basis of Article 86 of the Rules of Procedure, in order to seek annulment of the 2020 acts as well as the 2017 acts (together, ‘the contested acts’), in so far as they concern her. The Council lodged its observations on the statement of modification at the Court Registry on 28 September 2020.

36 On a proposal from the Judge-Rapporteur, the Court decided to open the oral part of the procedure.

37 The parties presented oral argument and replied to the oral questions put by the Court at the hearing on 20 October 2020. Following the hearing, the oral part of the procedure was closed and the case entered the deliberation stage.

38 Following modification of the application, the applicant claims, in essence, that the Court should:

– annul the contested acts, in so far as her name was maintained on the lists at issue;

39 Following its observations on the statement of modification, the Council contends, in essence, that the Court should:

– in the further alternative, in the event that the contested acts are annulled as regards the applicant, maintain the effects of the contested decisions until the expiry of the period for bringing an appeal or, if an appeal is brought within that period, until the dismissal of that appeal;

Admissibility of the arguments set out in paragraphs 3 to 12 of the request for a hearing and removal from the file of Annexes E.1 to E.4 annexed to that request

40 At the hearing, the Council contended that the arguments set out in paragraphs 3 to 12 of the applicant’s request for a hearing and the documents constituting Annexes E.1 to E.4 to that request are inadmissible under Article 85 of the Rules of Procedure.

41 The applicant stated that Annexes E.1 to E.4 would be withdrawn from the file, while maintaining the arguments set out in paragraphs 3 to 12 of her request for a hearing.

42 It should be noted that the written part of the procedure before the General Court comprises an initial exchange of pleadings, in accordance with Articles 76 and 81 of its Rules of Procedure, which, under Article 83 of those rules, may be followed by a second and final exchange of pleadings, where the Court considers it necessary to supplement the contents of the case file.

43 In the present case, it must be held that the arguments set out in paragraphs 3 to 12 of the request for a hearing do not constitute reasons why the applicant would wish to be heard. Moreover, in those paragraphs, the applicant sets out arguments already put forward in her previous written pleadings and seeks to reply to the observations made in the rejoinder. Accordingly, paragraphs 3 to 12 of the request for a hearing should not be taken into consideration and the documents that constitute Annexes E.1 to E.4 must be removed from the case file.

44 Without raising a plea of inadmissibility by a separate document under Article 130(1) of the Rules of Procedure, the Council, in the defence and in its observations on the statement of modification, claims that the action is inadmissible in so far as it is based on Article 263 TFEU, on the ground that it is out of time.

45 It maintains that it was under no obligation to notify the contested acts to the applicant, since neither Decision 2015/1333 nor Regulation 2016/44 contains any provision from which it would follow that it must notify to the persons or entities on the lists at issue the acts by which it amends the entries relating to them. In addition, it submits that its letter of 25 March 2019 is a reply to the letter from the applicant’s lawyer of 5 February 2019 and that it may not be viewed as the means by which the 2017 acts came to the applicant’s knowledge in the sense of the sixth paragraph of Article 263 TFEU. Moreover, the applicant cannot reasonably claim to have become aware of the 2020 acts as a result of the Council’s reply to the questions put by the Court in the context of the measure of organisation of procedure, of which she was notified by letter from the Registry of 13 July 2020. The point at which an act comes to the knowledge of an interested person can be regarded as the starting point of the period for bringing an action for annulment only when that act has been neither published nor notified. In the present case, the period for bringing an action against the contested acts started to run from their publication in the Official Journal of the European Union, which was on 22 March 2017 as regards the 2017 acts, and on 6 March 2020 as regards the 2020 acts.

46 At the hearing the Council explained, in reply to a question from the Court, that although, under certain sanctions regimes, the Council is explicitly obliged to notify the persons concerned of any amendment to a listing, with a statement of the reasons, that is not the case as regards the sanctions regime in view of the situation in Libya.

47 The applicant claims that her action satisfies the admissibility criteria laid down in Article 263 TFEU, in particular as regards the period within which it must be brought. First, the application was lodged at the Court Registry on 27 May 2019, that is to say, within the period of two months, extended on account of distance by the single period of 10 days provided for in Article 60 of the Rules of Procedure, from the date of notification of the 2017 acts to the applicant by the letter of 25 March 2019 (see paragraph 25 above). Second, the statement of modification seeking annulment of the 2020 acts was lodged within the two-month period, extended on account of distance by a single period of 10 days, from the date on which the applicant became aware of the adoption of those acts, as mentioned in the Council’s response to the measure of organisation of procedure, that response having been notified to the applicant by letter from the Registry of 13 July 2020 (see paragraph 34 above).

48 The applicant maintains that the Council is also under an obligation to notify decisions amending listing decisions, even if no new grounds are put forward. She submits that if there was no obligation for the Council to notify her of the contested acts, the only means by which she would have been alerted to their adoption would have been their publication in the Official Journal, thereby restricting unduly her ability to seise the Court at the appropriate time. According to the applicant, the Council’s position overlooks the case-law which establishes that the Council is not free to choose arbitrarily the means of communication of its decisions to the persons concerned. Given that the Council had the address of the lawyer instructed by the applicant, as evidenced by the letter of 6 October 2016, receipt of which it acknowledged, the contested acts should have been communicated to her by that means. Such notification took place only with regard to the 2017 acts, by the letter of 25 March 2019. Furthermore, she became aware of the 2020 acts, indirectly, through the letter from the Registry of 13 July 2020 (see paragraph 45 above). The application and the statement of modification, the latter lodged in accordance with Article 86(1) of the Rules of Procedure, were thus filed within the time limit prescribed in Article 263 TFEU.

49 It should be borne in mind, first of all, that, under the sixth paragraph of Article 263 TFEU, an action for annulment must be instituted within two months of the publication of the contested measure, or of its notification to the applicant, or, in the absence thereof, of the day on which it came to the applicant’s knowledge, as the case may be.

50 Under Article 86(1) of the Rules of Procedure, where a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter, the applicant may, before the oral part of the procedure is closed, or before the decision of the Court to rule without an oral part of the procedure, modify the application to take account of that new factor.

51 According to the case-law, the principle of effective judicial protection means that the EU institution which adopts or maintains individual restrictive measures against a person or entity, as is the case here, is bound to communicate the grounds on which those measures are based, either when those measures are adopted or, at the very least, as swiftly as possible after their adoption, in order to enable those persons or entities to exercise their right to bring an action (see, to that effect, judgment of 5 November 2014, Mayaleh v Council, T‑307/12 and T‑408/13, EU:T:2014:926, paragraph 54 and the case-law cited).

52 That situation is a consequence of the particular nature of the acts imposing restrictive measures on a person or entity, which at the same time resemble both measures of general application in that they impose on a category of addressees determined in a general and abstract manner a prohibition on, inter alia, making available funds and economic resources to persons and entities named in the lists set out in their annexes and also a series of individual decisions affecting those persons and entities (see judgment of 23 April 2013, Gbagbo and Others v Council, C‑478/11 P to C‑482/11 P, EU:C:2013:258, paragraph 56 and the case-law cited).

53 In the present case, the principle of effective judicial protection is applied in Article 13 of Decision 2015/1333, which provides in paragraphs 1 and 3, respectively, that ‘where the Security Council or the [Sanctions] Committee lists a person or entity, the Council shall include such person or entity in Annex I or III [to that decision]’ and that ‘the Council shall communicate its decision to [that] person or entity …, including the grounds for listing, either directly, if the address is known, or through the publication of a notice, providing such person or entity an opportunity to present observations’.

55 It follows that while, admittedly, the entry into force of measures such as the contested acts is effected by their publication, the period for the bringing of an action for the annulment of those acts under the fourth paragraph of Article 263 TFEU runs, for each of those persons and entities, from the date of the communication which they must receive (see judgment of 23 October 2015, Oil Turbo Compressor v Council, T‑552/13, EU:T:2015:805, paragraph 41 and the case-law cited). Likewise, the time limit for submitting a request to challenge or to extend the form of order sought and the pleas in law to an act which maintains those measures begins to run only from the date on which that new act is communicated to the person or entity concerned (see judgment of 5 November 2014, Mayaleh v Council, T‑307/12 and T‑408/13, EU:T:2014:926, paragraph 56 and the case-law cited).

56 It should be noted that the 2017 acts, like the 2020 acts, are acts by which the Council maintained the applicant’s name on the lists at issue. It is true, as the Council contends, that Decision 2015/1333 and Regulation 2016/44, to which those lists are annexed, do not place the Council under an express obligation to notify the persons or entities concerned of the acts by which it maintains their names on those lists.

57 However, such an obligation to notify stems from the principle of effective judicial protection as interpreted by the case-law recalled in paragraph 55 above, from which it is apparent that the Council is required to notify any maintaining of a listing together with a statement of reasons to the persons concerned, independently of whether, in order to maintain that listing, the Council relied on new factors (see, to that effect, judgment of 5 November 2014, Mayaleh v Council, T‑307/12 and T‑408/13, EU:T:2014:926, paragraph 57).

58 Furthermore, it must be pointed out that, in the present case, the acts concerning the maintaining of a person’s name on the lists at issue are not adopted at regular intervals. In view of the resulting lack of foreseeability as to their adoption, if the period for bringing an action for annulment of those acts were to start to run only from their publication, a person such as the applicant would effectively be responsible for continually checking the Official Journal, which could impede her access to the Courts of the European Union.

59 In those particular circumstances, the Council cannot legitimately claim that the period laid down in the fourth paragraph of Article 263 TFEU for bringing an action for annulment of the contested acts started to run, with respect to the applicant, from the date of their publication in the Official Journal.

60 Next, in order to determine the date of communication from which the time limits which the applicant was required to observe in order to challenge the contested acts before the Court started to run, it is necessary to define the manner in which the Council was required to communicate those acts to the applicant.

61 In that regard, it should be recalled that the Council is not free to choose the means of communication to the persons concerned of acts by which it subjects them to restrictive measures. It is clear from paragraph 61 of the judgment of 23 April 2013, Gbagbo and Others v Council (C‑478/11 P to C‑482/11 P, EU:C:2013:258), that indirect communication of such acts through the publication of a notice in the Official Journal is permissible only if it is impossible for the Council to undertake individual communication. Were that not the case, the Council would readily be able to evade its obligation to undertake individual communication (see, to that effect, order of 10 June 2016, Pshonka v Council, T‑381/14, EU:T:2016:361, paragraph 41 and the case-law cited).

62 It follows from the case-law cited in paragraph 61 above that Article 13(3) of Decision 2015/1333 and Article 21(3) of Regulation 2016/44 must be interpreted as meaning that when the Council has the address of a person who is subject to restrictive measures, if the acts incorporating those measures are not communicated directly, the period for bringing an action which that person must observe in order to challenge those acts before the Court does not start to run. Thus, it is only where it is impossible to communicate individually to the person concerned the acts by which restrictive measures against that person are adopted or maintained that the publication of a notice in the Official Journal causes the period for bringing an action to start to run (see, to that effect and by analogy, judgments of 6 September 2013, Bank Melli Iran v Council, T‑35/10 and T‑7/11, EU:T:2013:397, paragraph 59, and of 4 February 2014, Syrian Lebanese Commercial Bank v Council, T‑174/12 and T‑80/13, EU:T:2014:52, paragraphs 59 and 60 and the case-law cited).

63 In that regard, it should be observed that the Council may be considered to be unable to communicate individually to a natural or legal person or to an entity an act incorporating restrictive measures relating to that person or entity either when the address of that person or entity is not published and has not been supplied to the Council or when the communication sent to the address which the Council has fails, in spite of the steps which it has taken, with all necessary diligence, in order to effect such communication (judgment of 5 November 2014, Mayaleh v Council, T‑307/12 and T‑408/13, EU:T:2014:926, paragraph 61).

64 It is also apparent from the case-law that the Council may not, in principle, discharge its obligation to communicate to the person concerned an act containing restrictive measures imposed on that person by sending the notification of that act to the lawyers representing the person concerned. Notification to an applicant’s representative amounts to notification to the addressee only where such a form of notification is expressly provided for by legislation, where there is an agreement to that effect between the parties or where the lawyer is duly authorised to accept such notification on behalf of his or her client (see, to that effect, judgment of 28 March 2017, El-Qaddafi v Council, T‑681/14, not published, EU:T:2017:227, paragraphs 31 and 34 and the case-law cited).

65 In the present case, it is clear from the file that, on 21 March 2017, the date on which the 2017 acts were adopted, and on 5 March 2020, the date on which the 2020 acts were adopted, the Council, as it confirmed at the hearing, had the address of the applicant’s lawyer and the power of attorney which the applicant had given to her lawyer, as communicated by the letter of 6 October 2016, receipt of which the Council acknowledged on the same day. That power of attorney, signed by the applicant on 12 March 2015, stated, inter alia, that she authorised her lawyer to receive information, correspond and act on her behalf in all matters pertaining to the imposition of sanctions on her by the Security Council and all matters pertaining to the inclusion of her name in Annex I to Decision 2011/137 and/or any other subsequent act adopted by the Council.

66 The circumstances of the present case can therefore be distinguished from those of the case that gave rise to the judgment of 28 March 2017, El-Qaddafi v Council (T‑681/14, not published, EU:T:2017:227), in which the Court held that no proof had been furnished of the existence of authorisation given by the applicant to her representative, with the result that it could not be concluded that the Council had properly communicated the decision in question to the applicant by notifying her representative and that, therefore, the period for bringing the action had started to run from the date of publication of a notice in the Official Journal.

67 It should also be noted that, as the Council confirmed in its reply to the questions put in the context of the measure of organisation of procedure and at the hearing, the contested acts were not the subject of a notice published in the Official Journal for the persons referred to in the annexes at issue.

68 Since it is not apparent from the file that it was impossible for the Council to communicate the contested acts directly to the applicant or to her duly authorised lawyer, or that such communication would have failed, and no notice having been published in the Official Journal concerning the retention of the applicant’s name on the lists at issue, individual communication of the 2017 acts to the applicant was properly effected by the letter of 25 March 2019, by which the Council, following the letter of 5 February 2019 from the applicant’s lawyer (see paragraph 24 above), notified those acts to the lawyer.

69 Finally, it is not apparent either from the file or from the Council’s arguments that the contested acts actually came to the applicant’s knowledge, for the purposes of the sixth paragraph of Article 263 TFEU, in such a way that the period for bringing proceedings started to run before 25 March 2019, the date on which the Council notified the 2017 acts to the lawyer instructed by the applicant, or, as regards the 2020 acts, before 13 July 2020, the date of notification of the Council’s response to the questions put in the context of the Court’s measure of organisation of procedure (see paragraph 45 above).

70 In any event, even if individual communication of the contested acts were to be regarded as not having properly taken place on 25 March 2019 and 13 July 2020 respectively, the period for bringing proceedings would not, in that case, have started to run and the present action would not therefore be out of time.

71 Thus, it must be held that, since the Council did not properly communicate the 2017 acts to the applicant before 25 March 2019, the applicant was not time-barred, on the date on which the application was lodged, on 27 May 2019, from bringing an action for their annulment. Likewise, she was not time-barred, on the date on which the statement of modification of the application was lodged, on 1 September 2020, from modifying her application so as to take account of the adoption of the 2020 acts and seek their annulment.

72 In those circumstances, the Council’s plea of inadmissibility, alleging that the action against the contested acts is time-barred in so far as it is based on Article 263 TFEU, must be rejected.

73 The applicant puts forward four pleas in law in support of the action in so far as it is based on Article 263 TFEU, alleging (i) infringement of essential procedural requirements relating to the right to effective judicial protection; (ii) breach of the principles of res judicata and legal certainty and of the right to an effective remedy; (iii) failure to disclose a lawful basis and to provide a statement of reasons for maintaining her name on the lists at issue; and (iv) disproportionate infringement of her fundamental rights.

74 As a preliminary point, a distinction must be drawn between the acts by which the applicant was entered on the lists of persons covered by restrictive measures and the subsequent acts the purpose of which is to maintain her name on those lists. The 2011 acts, namely Decision 2011/137 and Regulation No 204/2011, and the subsequent listing measures, namely Decision 2015/1333 and Regulation 2016/44, are not the subject of the present action and have not been challenged in sufficient time before the Courts of the European Union. As regards the 2014 acts, these were the subject of the action that gave rise to the judgment of 28 March 2017, El-Qaddafi v Council (T‑681/14, not published, EU:T:2017:227), which has become final, no appeal having been brought. The applicant’s pleas are therefore admissible only in so far as they are intended to procure annulment of the contested acts, that is, the 2017 acts and, following the modification of the application pursuant to Article 86 of the Rules of Procedure, also the 2020 acts, in so far as they maintain the applicant’s name on the lists at issue.

75 It is appropriate to examine, first of all, the third plea, by which the applicant claims that the Council decided to maintain the restrictive measures against her without providing reasons or disclosing a lawful basis.

76 In that regard, it should be noted that the question of the statement of reasons, which concerns an essential procedural requirement, is separate from that of the evidence of the alleged conduct, which concerns the substantive legality of the act in question and involves assessing the truth of the facts set out in that act and the characterisation of those facts as evidence justifying the use of restrictive measures against the person concerned (see judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 60 and the case-law cited).

77 The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect. It follows that objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a plea alleging an inadequate statement of reasons or a lack of such a statement (see judgment of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 37 and the case-law cited).

78 In the present case, as the applicant moreover confirmed at the hearing, it is therefore necessary to distinguish within the third plea a first part, alleging an inadequate statement of reasons for the contested acts, and a second part, alleging in essence that there was no factual basis for maintaining her name on the lists at issue and that the Council had failed to produce evidence showing that the measures taken against her were well founded.

– The first part of the third plea, alleging a failure to state reasons for the contested acts

79 The applicant claims that, contrary to the requirements of Article 13(3) of Decision 2015/1333 and Article 21(3) of Regulation 2016/44 and the Council guidelines on sanctions, the contested acts are vitiated by a failure to state reasons.

80 The Council contends that the applicant was in a position to understand, on the basis of the contested acts themselves and the evidence and explanations that were provided to her, the context and scope of the measures relating to her.

81 It must be recalled that the purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the Courts of the European Union and, second, to enable those Courts to review the legality of that act (see judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 49 and the case-law cited). Furthermore, the statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure (see judgments of 24 September 2014, Kadhaf Al Dam v Council, T‑348/13, not published, EU:T:2014:806, paragraph 63 and the case-law cited, and of 20 September 2016, Alsharghawi v Council, T‑485/15, not published, EU:T:2016:520, paragraph 27 and the case-law cited).

82 As regards restrictive measures, without going so far as to require a detailed response to the comments made by the person concerned, the obligation to state reasons entails in all circumstances, not least when the reasons stated for the EU measure represent reasons stated by an international body, that that statement of reasons identifies the individual, specific and concrete reasons why the competent authorities consider that the person concerned must be subject to restrictive measures (see judgment of 18 February 2016, Council v Bank Mellat, C‑176/13 P, EU:C:2016:96, paragraph 76 and the case-law cited). Accordingly, the statement of reasons for an act of the Council imposing a restrictive measure cannot, as a rule, consist merely of a general, stereotypical formulation (see, to that effect, judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 146 and the case-law cited).

83 The statement of reasons must, however, be appropriate to the act at issue and the context in which it was adopted. It must be appraised by reference to the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for it to go into all the relevant facts and points of law, since the question of its sufficiency must be assessed with regard not only to the wording of the act concerned but also to its context and to all the legal rules governing the matter in question (see judgments of 24 September 2014, Kadhaf Al Dam v Council, T‑348/13, not published, EU:T:2014:806, paragraph 66 and the case-law cited, and of 20 September 2016, Alsharghawi v Council, T‑485/15, not published, EU:T:2016:520, paragraph 30 and the case-law cited).

84 In particular, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him or her to understand the scope of the measure concerning him or her (see judgments of 24 September 2014, Kadhaf Al Dam v Council, T‑348/13, not published, EU:T:2014:806, paragraph 67 and the case-law cited, and of 20 September 2016, Alsharghawi v Council, T‑485/15, not published, EU:T:2016:520, paragraph 31 and the case-law cited).

85 In the present case, it should be noted that the contested acts state the reason why the Council maintained the applicant’s name on the lists at issue in March 2017 and in March 2020, which corresponds to the justification given for the entry of the applicant’s name on the lists annexed to the 2011 acts and subsequently on the lists at issue, namely those annexed to Decision 2015/1333 and Regulation 2016/44, that is to say, the fact that she had been listed pursuant to paragraphs 15 and 17 of Resolution 1970 (2011), on account of her association with the regime established by Mr Qadhafi.

86 In addition, it should be noted that the Council provided information to the applicant (see paragraph 13 above), referring, first, to the public statements she had made in 2011 and in 2013 calling for the overthrow of the legitimate Libyan authorities and revenge for her father’s death, and, second, to the ongoing instability in Libya, while reaffirming the need to prevent individuals associated with the former regime of Mr Qadhafi from continuing to undermine the situation in Libya.

87 It follows from this that the applicant was able to understand that her name had been maintained on the lists at issue because of her listing pursuant to paragraphs 15 and 17 of Resolution 1970 (2011), those statements, which are part of the context in which the contested acts were adopted, and the fact that the Council considered those measures still to be necessary.

88 The information set out in the contested acts, together with the information provided in the exchange of correspondence with the Council, was therefore sufficient to enable the applicant to form a view as to the lawfulness of the contested acts and to prepare to challenge them, which she was properly able to do in the present case.

– The second part of the third plea, alleging that there is no factual basis for maintaining the applicant’s name on the lists at issue

90 The applicant claims that the contested acts fail to disclose a lawful basis on which the Council could maintain her name on the lists at issue and that her continued listing is based solely on the ground that she continued to be listed by the Security Council, in accordance with paragraphs 15 and 17 of Resolution 1970 (2011). In reliance on the judgment of 28 March 2017, El-Qaddafi v Council (T‑681/14, not published, EU:T:2017:227), the applicant submits that the contested acts do not contain individual, specific and concrete reasons that would justify maintaining her name on the lists at issue despite the fall of the regime referred to in that resolution.

91 More specifically, in the applicant’s submission, the information on which the Council relied in order to justify maintaining her name on the lists at issue has no nexus to the specific time period or conduct targeted by paragraphs 15 and 17 of Resolution 1970 (2011) and/or is derived from remote hearsay or other sources that lack probative value.

92 According to the applicant, with respect to the hearsay allegations concerning particular speeches reportedly attributed to her, the Council had an obligation to consider the relevance and weight of those speeches, in the light of, first, written assurances from the Omani authorities that the applicant had complied with the conditions of her residence in their country and, second, the written communiqué from the Libyan authorities to the effect that the applicant’s de-listing would be consistent with the goals of peace and reconciliation in Libya, and that she was not viewed as a risk to a peaceful political process in Libya.

93 As regards the information that appears to indicate that she was somehow associated with financial impropriety, the applicant submits that the Council has never alleged, let alone demonstrated, that the particular assets affected by the restrictive measures at issue are the product of misappropriation or have any other nexus to the grounds set out in paragraphs 15 and 17 of Resolution 1970 (2011).

94 According to the applicant, even if supporters of Mr Qadhafi’s former regime were persisting in their attempts to destabilise the situation in Libya and were involved in attacks against civilians, the reasons for maintaining her name on the lists at issue manifestly did not include any information from which she would have been able to infer what her individual, specific and concrete role was in those events or the extent of her possible involvement in the lack of security in Libya.

95 The Council disputes the applicant’s arguments. In the first place, it contends that the reasons underlying the retention of the applicant’s name on the lists at issue were not taken into account in the judgment of 28 March 2017, El-Qaddafi v Council (T‑681/14, not published, EU:T:2017:227), relating to the 2014 acts, and cannot therefore constitute matters of fact or law actually or necessarily settled by that judgment.

96 In the second place, the Council submits that it adopted the contested acts on the basis of the information contained in the letter of 4 May 2015 (see paragraph 13 above) and the updated information provided by the Sanctions Committee, adding a reference to an Interpol notice and removing the paragraph relating to ‘additional information’ on the violation of the travel ban. As regards the addition of the reference to the Interpol notice, the Council observes, however, that the notice concerns an investigation into financial offences, and it therefore did not rely on the information relating to that investigation, since this type of conduct is not covered by the listing criteria provided for in Articles 8 and 9 of Decision 2015/1333 and the corresponding provision of Regulation 2016/44 or in the relevant Security Council resolutions.

97 First, the Council maintains, as recital 3 of Decision 2015/1333 indicates, that a threat continues to be posed to the peace, stability or security of Libya and the successful completion of its political transition, inter alia through the exacerbation of current divisions by persons and entities identified as having been involved in the repressive policies of the former regime of Mr Qadhafi in Libya or otherwise formerly associated with that regime. Moreover, the Court had also held in the judgment of 20 September 2016, Alsharghawi v Council (T‑485/15, not published, EU:T:2016:520), that the correctness of the Council’s assessment was corroborated by the fact that, in its Resolution 2213 (2015), the Security Council had notably reaffirmed, in substance, the need to prevent associates of the former regime of Mr Qadhafi from destabilising the situation in Libya.

98 Second, the Council contends that the statements and press articles which it communicated to the applicant by its letter of 4 May 2015 (see paragraph 13 above) are sufficiently specific, precise and consistent to corroborate the veracity of the public statements made by the applicant in 2011 and 2013, calling for the overthrow of the legitimate Libyan authorities and for revenge for her father’s death. Those statements clearly met the criteria for inclusion on the lists at issue, in that they showed that the applicant is contributing, like other associates of Mr Qadhafi’s former regime, to the destabilisation of the situation in Libya. Furthermore, the fact that the Omani authorities had determined that the applicant’s residence in Oman rather than in the immediate proximity of Libya would serve to de-escalate tensions in the region and that the applicant’s authorisation to reside in Oman was made conditional on her undertaking not to engage in political activities showed that she continued to pose a threat to the peace, stability or security of Libya.

99 Thus, according to the Council, the updated information provided by the Sanctions Committee and the reasons set out in the contested acts, as supplemented and developed by the information communicated to the applicant in the letter of 4 May 2015 (see paragraph 13 above), which could be taken into consideration for the purpose of the adoption of the contested acts, attest to the review carried out by the Council in order to justify maintaining the applicant’s name on the lists at issue.

100 In the third and last place, neither the note verbale of the Omani authorities nor the communiqué from the Libyan authorities on which the applicant relied constituted evidence that would have justified the Council not maintaining the applicant’s name on the lists at issue.

101 It should be recalled that, according to the case-law, the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires, in particular, that the Courts of the European Union are to ensure that the decision by which restrictive measures were adopted or maintained, which affects the person or entity concerned individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (see, to that effect, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119).

102 It is for the Courts of the European Union, in order to carry out that examination, to request the competent EU authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination (see judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 120 and the case-law cited). By contrast, it is for that competent EU authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded. For that purpose, it is necessary that the information or evidence produced should support the reasons relied on against the person concerned (judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 121 and 122).

103 It is in the light of those principles that the Court must establish whether the retention of the applicant’s name on the lists at issue has a sufficiently solid factual basis.

104 In the present case, first of all, it should be noted that the considerations put forward by the applicant to refute the allegation that she travelled in violation of the ban imposed by the Security Council and the Sanctions Committee are irrelevant. The Council no longer relied on the information contained in its letter of 18 December 2014 (see paragraph 11 above) in order to adopt the contested acts, and that reason for listing is no longer mentioned among those included in the lists at issue.

105 Next, it should be noted that the contested acts do not refer to any justification for maintaining the applicant’s name on the lists at issue in March 2017 and March 2020 other than that which had been put forward for the entry of her name on the lists annexed to the 2011 acts and the application of paragraphs 15 and 17 of Resolution 1970 (2011). As regards the reference to the Interpol notice, as pointed out in paragraph 96 above, the Council stated and confirmed at the hearing that it did not rely on the information relating to the investigation that was the subject of that notice.

106 It is true that the reasons put forward by the Council for the entry of the applicant’s name on the lists at issue, namely being the ‘daughter of Muammar Qadhafi’ and the ‘closeness of [her] association with [his] regime’, were not challenged in good time before the Courts of the European Union.

107 However, even though the Council was entitled to refer to the fact that the applicant was one of the persons covered by Resolution 1970 (2011) and to the statement of reasons set out in that resolution, it is clear from the case-law recalled in paragraphs 101 and 102 above that the Council is not relieved of its obligation to establish that the retention of the applicant’s name on the lists at issue had a sufficiently solid factual basis.

108 It should be borne in mind in that regard that the 2011 acts had been adopted ‘against persons and entities involved in serious human rights abuses against persons in Libya, including by being involved in attacks, in violation of international law, on civilian populations and facilities’, as stated in recital 3 of Decision 2011/137. Decision 2015/1333 and Regulation 2016/44 were adopted with the aim of consolidating into new legal instruments the restrictive measures imposed by the 2011 acts, as amended and implemented by several subsequent acts, ‘in view of the specific threat to international peace and security in the region posed by the situation in Libya’ (see recital 4 of Regulation 2016/44).

109 Notwithstanding the Council’s explanations recalled in paragraph 97 above, the information, ‘listed pursuant to paragraphs 15 and 17 of Resolution 1970 (2011) (Travel Ban, Asset Freeze)’, does not make it possible to understand the individual, specific and concrete reasons why the applicant’s name was maintained on the lists at issue on 21 March 2017 and 5 March 2020.

110 It should be noted in that regard that the Council merely refers to the information communicated to the applicant in the letter of 4 May 2015 (see paragraph 13 above), in particular the public statements she reportedly made in 2011 and 2013, without explaining why that information may have evidenced the risk which the applicant posed in 2017 and 2020, that is to say, at the time when the contested acts were adopted, to international peace and security in the region.

111 It should be borne in mind in that regard that, in paragraphs 69 and 73 of the judgment of 28 March 2017, El-Qaddafi v Council (T‑681/14, not published, EU:T:2017:227), the Court noted that the information communicated to the applicant in the letter of 4 May 2015 (see paragraph 13 above) was not among the reasons on the basis of which the 2014 acts had been adopted, that that information had been brought to the Council’s attention after the date on which those acts were adopted and that the disputed grounds manifestly did not include any information from which the applicant would have been able to infer – even on a broad interpretation of those grounds – what her individual, specific and concrete role was in the events that were taking place in Libya.

112 It is true that the force of res judicata in respect of the judgment of 28 March 2017, El-Qaddafi v Council (T‑681/14, not published, EU:T:2017:227), on which the applicant relies, cannot be invoked in the present case. First, as the Council argues, the 2017 acts were adopted before that judgment was delivered; second, the subject matter of, and cause of action in, the present proceedings are not the same as those of the action that gave rise to that judgment; and, third, the principle of the force of res judicata extends only to the matters of fact and law actually or necessarily settled by a judicial decision (see, to that effect, judgment of 29 November 2018, National Iranian Tanker Company v Council, C‑600/16 P, EU:C:2018:966, paragraph 43 and the case-law cited). The reasons underpinning the retention of the applicant’s name on the lists at issue do not constitute matters of fact and law actually or necessarily settled by the judgment of 28 March 2017, El-Qaddafi v Council (T‑681/14, not published, EU:T:2017:227), concerning the annulment of the 2014 acts.

113 It cannot, however, be inferred from that finding that the Council was not required to state the reasons why the information that had been brought to its attention before the date on which the contested acts were adopted, as communicated to the applicant in the letter of 4 May 2015, would still have been up to date in 2017 and 2020, so as to justify maintaining her name on the lists at issue.

114 The alleged public statements of the applicant to which reference is made in the letter of 4 May 2015 were reportedly made in 2011, in the immediate aftermath of reports concerning the deaths of Mr Qadhafi and Mr Mutassim Qadhafi, and in 2013. Consequently, several years have elapsed since those statements were reported in the press and brought to the attention of the Council, yet the Council does not give the slightest indication as to why the content of those statements might have shown that the applicant still represented a threat subject to sanctions within the framework of the objectives of Resolution 1970 (2011), notwithstanding the intervening changes in relation to her individual situation.

115 It should be observed in that regard that, since the 2011 listing measures and the subsequent listing measures, namely Decision 2015/1333 and Regulation 2016/44, the applicant has ceased to reside in Libya and the file does not mention any participation on her part in Libyan political life or statements other than those attributed to her in 2011 and 2013. Despite those changes in the applicant’s individual situation, the Council does not explain why she represented a threat to international peace and security in the region in 2017 and 2020, when the contested acts were adopted.

116 In the light of all the foregoing considerations, the applicant’s criticisms that the contested acts have no factual basis that would justify the retention of her name on the lists at issue are well founded.

117 The second part of the third plea in law must therefore be upheld and, consequently, the contested acts must be annulled to the extent that they concern the applicant, without it being necessary to examine the action in so far as it is based on Article 265 TFEU or the other pleas in law and arguments raised by the applicant in support of her application for annulment of those acts.

Whether the effects of the implementing decision should be maintained

118 Following its observations in relation to the statement of modification, the Council asks the Court, in the alternative, in the event that Implementing Regulation 2020/371 is annulled in part, to declare, for reasons of legal certainty, that the effects of Implementing Decision 2020/374 be maintained until the annulment in part of Implementing Regulation 2020/371 takes effect.

119 At the hearing, the Council stated that Implementing Decision 2017/497 was still in force, as it was not replaced by Implementing Decision 2020/374, since the latter had merely updated the information relating to the applicant’s passports and her national identification number, which had not affected the reason for the applicant’s retention on the relevant list. However, in the event that the Court should find that Implementing Decision 2020/374 replaced Implementing Decision 2017/497, the Council maintained its alternative claim (see the third indent of paragraph 39 above).

120 It must be held that Implementing Decision 2017/497 produced effects for the applicant only until 6 March 2020, the date of publication of Implementing Decision 2020/374, which updated the administrative information relating to the applicant without, however, amending the grounds for her listing. Consequently, the Council’s alternative claim that the effects should be maintained can relate only to that second decision.

121 Under the first paragraph of Article 60 of the Statute of the Court of Justice of the European Union, an appeal is not to have suspensory effect. The second paragraph of that article provides, however, that, by way of derogation from Article 280 TFEU, decisions of the General Court declaring a regulation to be void are to take effect only as from the date of expiry of the period for bringing an appeal or, if an appeal has been brought within that period, as from the date of its dismissal.

122 In the present case, Implementing Regulation 2020/371 has the nature of a regulation, since it provides that it is to be binding in its entirety and directly applicable in all Member States, which corresponds to the effects of a regulation as provided for in Article 288 TFEU (see, to that effect, judgment of 21 April 2016, Council v Bank Saderat Iran, C‑200/13 P, EU:C:2016:284, paragraph 121).

123 The second paragraph of Article 60 of the Statute of the Court of Justice of the European Union is therefore applicable in the present case (see, by analogy, judgment of 21 April 2016, Council v Bank Saderat Iran, C‑200/13 P, EU:C:2016:284, paragraph 122).

124 As regards the temporal effects of the annulment of Implementing Decision 2020/374, it must be recalled that, under the second paragraph of Article 264 TFEU, the Court may, if it considers this necessary, state which effects of the act which it has declared void are to be considered definitive.

125 In the present case, a difference between the date when the annulment of Implementing Regulation 2020/371 takes effect and that of Implementing Decision 2020/374 would be liable seriously to jeopardise legal certainty, since both acts impose identical measures on the applicant (see, by analogy, judgment of 21 February 2018, Klyuyev v Council, T‑731/15, EU:T:2018:90, paragraph 263). The effects of Implementing Decision 2020/374 must therefore be maintained as regards the applicant until the annulment of Implementing Regulation 2020/371 takes effect.

126 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

1. Annuls Council Implementing Decision (CFSP) 2017/497 of 21 March 2017 implementing Decision (CFSP) 2015/1333 concerning restrictive measures in view of the situation in Libya, and Council Implementing Decision (CFSP) 2020/374 of 5 March 2020 implementing Decision (CFSP) 2015/1333 concerning restrictive measures in view of the situation in Libya, in so far as they maintain the name of Ms Aisha Muammer Mohamed El-Qaddafi on the lists in Annexes I and III to Council Decision (CFSP) 2015/1333 of 31 July 2015 concerning restrictive measures in view of the situation in Libya, and repealing Decision 2011/137/CFSP;

2. Annuls Council Implementing Regulation (EU) 2017/489 of 21 March 2017 implementing Article 21(5) of Regulation (EU) 2016/44 concerning restrictive measures in view of the situation in Libya, and Council Implementing Regulation (EU) 2020/371 of 5 March 2020 implementing Article 21(5) of Regulation (EU) 2016/44 concerning restrictive measures in view of the situation in Libya, in so far as they maintain the name of Ms Aisha Muammer Mohamed El-Qaddafi on the list in Annex II to Council Regulation (EU) 2016/44 of 18 January 2016 concerning restrictive measures in view of the situation in Libya and repealing Regulation (EU) No 204/2011;

3. Orders the effects of Article 1 of Implementing Decision 2020/374 to be maintained in respect of Ms Aisha Muammer Mohamed El-Qaddafi until the date of expiry of the period for bringing an appeal, as provided for in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union, or, if an appeal is brought within that period, until the date of any dismissal of that appeal;

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> El-Qaddafi v Council (Common foreign and security policy - Restrictive measures taken in view of the situation in Libya - Judgment) [2021] EUECJ T-322/19 (21 April 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/T32219.html Cite as: [2021] EUECJ T-322/19, ECLI:EU:T:2021:206, EU:T:2021:206

Court of Justice of the European Communities (including Court of First Instance Decisions)