T-47/03

Case T-47/03 R Jose Maria Sison v Council of the European Union «(Interlocutory proceedings – Restrictive measures with a view to combating terrorism – Freezing of funds – Disallowance of benefits – Urgency – None)» Order of the President of the Court of First Instance, 15 May 2003      Summary of the Order 1.. Applications for interim measures – Suspension of operation of a measure – Conditions for granting – Urgency – Serious and irreparable damage – Burden of proof – Purely pecuniary loss – Measure freezing assets of an individual as part of the fight against terrorism (Art. 242 EC; Rules of Procedure of the Court of First Instance, Art. 104(2); Council Regulation No 2580/2001) 2.. Applications for interim measures – Suspension of operation of a measure – Interim relief – Conditions for granting – Urgency – Non-material damage not capable of better relief in interlocutory proceedings than in the main proceedings – No urgency (Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(2); Council Regulation No 2580/2001) 1. The urgency of an application for interim relief must be assessed in relation to the need for an interim order in order to avoid serious and irreparable damage being caused to the party seeking the relief. It is for that party to prove that it cannot await the outcome of the main proceedings without suffering such damage. Purely financial damage cannot, in principle, be regarded as irreparable, or even difficult to repair, because it can be the subject of subsequent financial compensation. Nevertheless, the judge hearing an application for interim measures must determine in the light of the circumstances of the individual case whether immediate implementation of the measure which is the subject of the application for suspension may cause the applicant serious and immediate harm which no subsequent decision could repair. In the case of an application for suspension of a measure freezing the funds of an individual as part of the fight against terrorism, the judge must ensure that the applicant has an amount of money which under normal circumstances should enable him to meet all the essential expenditure necessary to cater for his own basic needs and those of his family until a ruling is given in the main action. see paras 27, 29-31 2. Although the grant of interim measures might at least partly remedy the non-material damage alleged by an applicant and resulting from the mention of his name in a decision concerning the adoption of specific restrictive measures against certain persons and bodies as part of the fight against terrorism, such grant would not do so any more than would an annulment of that decision in the judgment in the main action. Since the purpose of proceedings for interim relief is not to ensure reparation for damage but rather to ensure the full effectiveness of the ruling to be given in the main case, the condition relating to urgency is not met in such a case. see para. 41 ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE 15 May 2003 (1) ((Interlocutory proceedings – Restrictive measures with a view to combating terrorism – Freezing of funds – Disallowance of benefits – Urgency – None)) In Case T-47/03 R, José Maria Sison, resident in Utrecht (the Nederlands), represented by J. Fermon, A. Comte, H.E. Schultz, D. Gurses, T. Olsson and J. Lamchek, lawyers, applicant, v Council of the European Union, represented by M. Vitsentzatos and M. Bishop, acting as agents, defendant, APPLICATION for, first, an order suspending the operation of Decision 2002/974/EC implementing Article 2(3) of Regulation No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2002/848/EC (OJ 2002 L 337, p. 85) in so far as it mentions the name of the applicant, second, an order requesting the Council not to include the applicant in any new decision implementing Article 2(3) of Regulation No 2580/2001 and, third, an order requesting the Council to inform all Member States that the restrictive measures adopted in relation to the applicant have no legal basis, THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES makes the following Order Legal and factual context Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70) provides, in Article 2, as follows: 1. Except as permitted under Articles 5 and 6: (a) all funds, other financial assets and economic resources belonging to, or owned or held by, a natural or legal person, group or entity included in the list referred to in paragraph 3 shall be frozen; (b) no funds, other financial assets and economic resources shall be made available, directly or indirectly, to, or for the benefit of, a natural or legal person, group or entity included in the list referred to in paragraph 3. ...3. The Council, acting by unanimity, shall establish, review and amend the list of persons, groups and entities to which this Regulation applies, in accordance with the provisions laid down in Article 1(4), (5) and (6) of Common Position 2001/931/CFSP; such list shall consist of: (i) natural persons committing, or attempting to commit, participating in or facilitating the commission of any act of terrorism; (ii) legal persons, groups or entities committing, or attempting to commit, participating in or facilitating the commission of any act of terrorism; (iii) legal persons, groups or entities owned or controlled by one or more natural or legal persons, groups or entities referred to in points (i) and (ii); or, (iv) natural [or] legal persons, groups or entities acting on behalf of or at the direction of one or more natural or legal persons, groups or entities referred to in points (i) and (ii). Article 5(2) and (3) of Regulation No 2580/2001 provide as follows: 2. The competent authorities of the Member States listed in the Annex may grant specific authorisations, under such conditions as they deem appropriate, in order to prevent the financing of acts of terrorism, for 1. the use of frozen funds for essential human needs of a natural person included in the list referred to in Article 2(3) or a member of his family, including in particular payments for foodstuffs, medicines, the rent or mortgage for the family residence and fees and charges concerning medical treatment of members of that family, to be fulfilled within the Community; 2. payments from frozen accounts for the following purposes:(a) payment of taxes, compulsory insurance premiums and fees for public utility services such as gas, water, electricity and telecommunications to be paid in the Community; and (b) payment of charges due to a financial institution in the Community for the maintenance of accounts; 3. payments to a person, entity or body [...] included in the list referred to in Article 2(3), due under contracts, agreements or obligations which were concluded or arose before the entry into force of this Regulation provided that those payments are made into a frozen account within the Community. 3. Requests for authorisations shall be made to the competent authority of the Member State in whose territory the funds, other financial assets or other economic resources have been frozen. Moreover, Article 6 of Regulation No 2580/2001 provides as follows: 1. Notwithstanding the provisions of Article 2 and with a view to the protection of the interests of the Community, which include the interests of its citizens and residents, the competent authorities of a Member State may grant specific authorisations: ─ to unfreeze funds, other financial assets or other economic resources, to unfreeze funds, other financial assets or other economic resources, ─ to make funds, other financial assets or other economic resources available to a person, entity or body included in the list referred to in Article 2(3), or to make funds, other financial assets or other economic resources available to a person, entity or body included in the list referred to in Article 2(3), or ─ to render financial services to such person, entity or body, to render financial services to such person, entity or body, after consultation with the other Member States, the Council and the Commission in accordance with paragraph 2. As regards the competent authorities referred to in Article 5, the list annexed to Regulation No 2580/2001, in relation to the Netherlands, makes reference to the Ministerie van Financiën (Ministry of Finance). On 28 October 2002, the Council adopted Decision 2002/848/EC implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2002/460/EC (OJ 2002 L 295, p. 12). Article 1 of Decision 2002/848 provided as follows: The list provided for in Article 2(3) of Regulation No 2580/2001 shall be as follows:1. PERSONS... 9. SISON, Jose Maria (a.k.a. Armando Liwanag, a.k.a. Joma, in charge of NPA) born 8.2.1939 in Cabugao, Philippines 2. GROUPS AND ENTITIES... 13. New Peoples Army (NPA), Philippines, linked to Sison Jose Maria C. (a.k.a. Armando Liwanag, a.k.a. Joma, in charge of NPA). ... On 12 December 2002, the Council adopted Decision 2002/974/EC implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2002/848/EC (OJ 2002 L 337, p. 85). Article 1 of Decision 2002/974/EC (hereinafter the contested decision) provides as follows: The list provided for in Article 2(3) of Regulation (EC) No 2580/2001 shall be as follows:1. PERSONS... 25. SISON, Jose Maria (a.k.a. Armando Liwanag, a.k.a. Joma, in charge of NPA) born 8.2.1939 in Cabugao, Philippines. 2. GROUPS AND ENTITIES... 14. New Peoples Army (NPA), Philippines, linked to Sison Jose Maria C. (a.k.a. Armando Liwanag, a.k.a. Joma, in charge of NPA) ... Procedure By application lodged at the Registry of the Court of First Instance on 6 February 2003, the applicant brought an action against the Council and the Commission before the Court pursuant to the fourth paragraph of Article 230 EC for annulment of the challenged decision. By separate document lodged at the Court's Registry on 28 February 2003, the applicant brought an application against the same institutions seeking, first, suspension of operation of Article 1, points 1.25 and 2.14 of the contested decision in so far as it mentions the name of the applicant, second, an order requesting the Council and the Commission not to include the applicant in any new decision implementing Article 2(3) of Regulation No 2580/2001, and, third, an order requesting the Council and the Commission to inform all the Member States that the restrictive measures adopted in relation to the applicant have no legal basis. The Commission and the Council lodged their written observations on the application for interim measures on 11 March 2003. The Commission lodged, on the same date, a plea of inadmissibility in relation to the main action. Oral submissions of the parties were heard at the hearing held on 26 March 2003 before the President of the Court of First Instance. At that hearing, the President gave the applicant seven days to consider whether he wanted to maintain the application for interim measures against the Commission. On 1 April 2003, the applicant lodged at the Court's Registry three additional documents, together with a request that the application for interim measures brought against the Commission be removed from the Court's register. On 22 and 23 April 2003, the Commission and the Council, respectively, submitted their observations on the abovementioned request. By order of the President of the Court of First Instance of 7 May 2003, the application for interim measures brought against the Commission was removed from the register. Law Under the combined provisions of Articles 242 EC and 243 EC, on the one hand, and Article 225(1) EC on the other, the Court of First Instance may, if it considers that the circumstances so require, order suspension of the operation of the contested measure or prescribe the necessary interim measures. Article 104(2) of the Rules of Procedure of the Court of First Instance provides that applications for interim measures must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case ( fumus boni juris) for the interim measures applied for. These conditions are cumulative, so that an application to suspend the operation of any measure must be dismissed if one of them is lacking (order of the President of the Court of Justice in Case C-268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, at paragraph 30, and of the President of the Court of First Instance in Case T-306/01 R Aden v Council and Commission [2002] ECR II-2387, paragraph 39). Where appropriate, the judge hearing the application must also balance the interests involved (order of the President of the Court of Justice in Case C-445/00 R Austria v Council [2001] ECR I-1461, paragraph 73). Furthermore, the measure sought must, in accordance with Article 107(3) and (4) of the Rules of Procedure, be provisional inasmuch as it must not prejudge the points of law or fact in issue or neutralise in advance the effects of the decision subsequently to be given in the main action (orders in Case C-149/95 P(R) Commission v Atlantic Container Line [1995] ECR I-2165, paragraph 22, and in Aden v Council and Commission, cited above, paragraph 41). In the present case, the President of the Court of First Instance considers it appropriate to examine the condition relating to urgency first. Urgency Arguments of the parties The applicant considers that the condition regarding urgency is met. First, he is suffering economic loss since, following the adoption of the contested decision, his financial resources are frozen and no funds, financial assets or economic resources are being made available to him, in accordance with the provisions of Article 2 of Regulation No 2580/2001. In that regard, the applicant explains that, on 13 August 2002, the Dutch Ministry of Finance ordered the freezing of the applicant's joint post office account with his wife and the termination of the social benefits that he had received from the Dutch welfare and refugee agencies. In addition, by letter sent on 10 September 2002, the City of Utrecht, in which the applicant was residing, cut his social allowance, his health insurance, his third-party liability insurance and ordered him to leave the house, which was rented on his behalf by the local authorities. Although the City of Utrecht announced, on 9 October 2002, that a social allowance amounting to EUR 201.93 per month would be granted and his health and third-party liability insurance would be restored for humanitarian reasons, the applicant was informed, by letter from the City of Utrecht of 13 December 2002, that, following a decision by the Dutch Ministry of Finance, the applicant's social allowance and insurances would not be paid in the future. The applicant submits that the freezing of his joint bank account with his wife and the termination of social benefits deprives him of basic necessities. The measures adopted by the national authorities also hinder the payments that are due to him as an author of books and articles, as a lecturer and speaker, as the heir to the estates of his parents and, finally, as compensation, amounting to the sum of USD 750.000, that is due to him by the estate of Ferdinand E. Marcos, following a judgment by a United States District Court given in 1997. In addition, he claims that the Dutch Government has refused to grant him a work permit. As regards the possibility of applying to the national competent authorities for an authorisation to unfreeze funds pursuant to Article 5 of Regulation No 2580/2001, the applicant observes that his experience shows that this possibility is not effective and depends totally on the discretionary power of the national authorities. Moreover, at the hearing, the applicant observed that an application was made to the Dutch Ministry of Finance pursuant to Article 6 of Regulation No 2580/2001, but that the Ministry of Finance rejected this application by decision of 7 March 2003. Second, the applicant considers that the abovementioned financial restrictions, combined with the increased personal surveillance to which he is subject, the restrictions on his freedom of movement and the fact of being labelled and stigmatised as terrorist in the public opinion, amounts to inhuman and degrading treatment as defined in Article 3 of the European Convention on Human Rights, which moreover causes moral and emotional distress. This also puts at risk the personal security and physical integrity of the applicant. The fact of being labelled as terrorist in particular jeopardises the applicant's role as chief political consultant of the National Democratic Front of the Philippines (NDFP). In this capacity, the applicant has allegedly been a key figure in the peace negotiations between the NDFP and the Philippine Government and has been a witness as signatory in all the major bilateral agreements between these two parties since 1992. The applicant refers to the fact that these peace negotiations have been strongly endorsed and supported by the European Parliament (Resolutions of the European Parliament No B4-0601, 0645 and 0686/97 of 17 July 1997 and No B4-1096, 1106, 1147, 1158 and 1160/98 of 14 January 1999). The Council submits that the applicant has not shown that he would suffer serious and irreparable harm unless interim measures are granted before judgment in the main action. Moreover, the order requested by the applicant should be dismissed in that it would neutralise the effects of the judgment in the main action. Findings of the President of the Court of First Instance According to settled case-law, the urgency of an application for interim relief must be assessed in relation to the need for an interim order in order to avoid serious and irreparable damage being caused to the party seeking the relief. It is for that party to prove that it cannot await the outcome of the main proceedings without suffering such damage (order of the President of the Court of Justice in Case C-278/00 R Greece v Commission [2000] ECR I-8787, paragraph 14, and orders of the President of the Court of First Instance in Case T-73/98 R Prayon-Rupel v Commission [1998] ECR II-2769, paragraph 36, and in Aden v Council and Commission, cited above, paragraph 89). The damage alleged by the applicant in this case is both material and non material. As regards the material damage alleged by the applicant, it is well established in the case-law that purely financial damage cannot, in principle, be regarded as irreparable, or even difficult to repair, because it can be the subject of subsequent financial compensation (order of the President of the Third Chamber of the Court of Justice of 3 July 1984 in Case 141/84 R De Compte v European Parliament [1984] ECR 2575, paragraph 4; orders of the President of the Court of First Instance of 29 September 1993 in Case T-497/93 R II Hogan v Court of Justice [1993] ECR II-1005, paragraph 17, and in Case Aden v Council and Commission, cited above, paragraph 92). Nevertheless, the judge hearing an application for interim measures must determine in the light of the circumstances of the individual case whether immediate implementation of the measure which is the subject of the application for suspension may cause the applicant serious and immediate harm which no subsequent decision could repair. In a context such as the present, the said judge must ensure that the applicant has an amount of money which under normal circumstances should enable him to meet all the essential expenditure necessary to cater for his own basic needs and those of his family until a ruling is given in the main action (see, by analogy, order in Aden v Council and Commission, cited above, paragraph 94). However, in the present case, it suffices to observe that, under Article 5 of Regulation No 2580/2001, the competent authorities of the Member States may grant specific authorisations as they deem appropriate, in order to prevent the financing of acts of terrorism, inter alia, for the use of frozen funds for essential human needs of a natural person ... or a member of his family, including in particular payments for foodstuffs, medicines, the rent or mortgage for the family residence and fees and charges concerning medical treatment of members of that family. Such authorisation may also be granted for payment of taxes, compulsory insurance premiums and fees for public utility services such as gas, water, electricity and telecommunications to be paid in the Community .... Moreover, under Article 6 of Regulation No 2580/2001, the competent authorities of a Member State may, after consultation with the other Member States, the Council and the Commission, grant specific authorisations to unfreeze funds, other financial assets or other economic resources, to make funds, other financial assets or other economic resources available to a person, entity or body, or to render financial services to such person, entity or body. It is, thus, clear from Articles 5 and 6 of Regulation 2580/2001 that the Regulation does not automatically and definitively deprive the applicant from acceding to his frozen funds or from receiving social allowances, provided, firstly, that the competent authorities of the Netherlands, in the present case the Ministry of Finance, consider that the applicant and his family fulfil the conditions laid down in those provisions and, secondly, that the procedures prescribed in the latter provisions are followed. It follows that the applicant may, by making an application before the national authorities, obtain the financial means sought in essence by the present application for interim measures. This conclusion cannot be affected by the fact that the Dutch Ministry of Finance has decided, on 7 March 2003, to reject the application for an authorisation pursuant to Article 6 of Regulation 2580/2001. Without its being necessary to consider the grounds on which the Ministry of Finance considered in the said decision of 7 March 2003 that the applicant has failed to meet the conditions laid down in Article 6 of Regulation No 2580/2001, it suffices to observe that domestic remedies are available under Dutch law allowing him to challenge such a decision. This was clearly admitted by the applicant at the hearing. Moreover, it appears from the documents lodged at the Court Registry on 1 April 2003 that the applicant has, on 25 March 2003, lodged an application with the Arrondissementsrechtsbank te Utrecht (District Court of Utrecht), asking for an interim measure ordering the Ministry of Finance to make funds, other financial assets or other economic resources available, pursuant to Article 6 of Regulation No 2580/2001. In addition, the applicant has, by letter of 20 March 2003, lodged an internal administrative appeal ( bezwaarschrift) with the Ministry of Finance against the decision of the latter. It should also be observed that the applicant has not adduced any evidence that a decision by the Ministry of Finance authorising the applicant's funds to be unfrozen pursuant to Article 5 of Regulation 2580/2001 would not suffice to cater for the basic humanitarian needs of the applicant and his family until the adoption of the judgment in the main case. In that regard, it does not appear from the file presented to the Court by the applicant that the Ministry of Finance has refused to grant an authorisation pursuant to Article 5, nor, more significantly, that any application for such an authorisation has been made. Indeed, it appears from the documents lodged at the Court's Registry on 1 April 2003 that the applicant has only applied for an authorisation under Article 6 of Regulation 2580/2001. In view of these facts, the applicant has failed to demonstrate that the possibility of obtaining an authorisation by the national authorities under Articles 5 and 6 of Regulation 2580/2001 and the domestic remedies available to him under Dutch law in respect of decisions taken by the national authorities pursuant to those provisions would not enable him to avoid serious and irreparable damage (see, by analogy, the orders of the President of the Court of Justice in Case 310/85 R Deufil v Commission [1986] ECR 537, paragraph 22; Case 142/87 R Belgium v Commission [1987] ECR 2589, paragraph 26; orders of the President of the Court of First Instance in Case T-155/96 R City of Mainz v Commission [1996] ECR II-1655, paragraph 25, and Case T-181/02 R Neue Erba Lautex v Commission [2002] ECR II-5081, paragraph 109). Consequently, any material damage that the applicant may suffer would not be a direct result of the adoption of the contested decision. As regards the non-material damage alleged by the applicant, it consists in the alleged damage caused to his reputation and dignity, which, the applicant believes, is causing him to be stigmatised and inflicting on him moral and emotional distress, while also putting at risk his personal security and physical integrity. The applicant contends that the damage caused to his reputation will have a particularly adverse effect on his role as a chief consultant of the NDFP in the framework of the peace negotiations with the Philippine Government. In that regard, although it cannot be ruled out that the grant of the interim measures requested might remedy, at least in part, the non-material damage alleged, it must none the less be stated that such a grant would not do so any more than would an annulment of that regulation in the judgment in the main action (order in Aden v Council and Commission, cited above, paragraph 117, and the case-law cited). Since the purpose of proceedings for interim relief is not to ensure reparation for damage but rather to ensure the full effectiveness of the ruling to be given in the main case, it must be concluded with regard to the claimed non-material damage that the condition relating to urgency is not met. Moreover, as regards the alleged risk to the applicant's personal security and physical integrity, the applicant has not demonstrated that this risk, to the extent that it is real, is necessarily the result of his inclusion in the contested decision nor that such a risk would be remedied by his removal from the latter decision. It follows that the condition relating to urgency is not fulfilled in the present case. In view of the above, the present application must be dismissed without its being necessary to consider if the other conditions governing the grant of the relief sought are met. On those grounds, THE PRESIDENT OF THE COURT OF FIRST INSTANCE hereby orders: 1. The application for interim relief is dismissed. 2. Costs are reserved. Luxembourg, 15 May 2003. H. Jung B. Vesterdorf Registrar President – Language of the case: English.