Corte di giustizia UE n. 881/2013

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 6 June 2013 ( * ) (Appeal – [OSCURATO:PERSONA] foreign and security policy (CFSP) – Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban – [OSCURATO:PERSONA] (EC) No 881/2002 – Action for annulment – Removal of the interested party from the list of persons and entities concerned – Interest in bringing proceedings) [OSCURATO:PERSONA] C‑183/12 P, APPEAL under Article 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 12 April 2012, [OSCURATO:PERSONA], residing in Dublin ([OSCURATO:PERSONA]), represented by P. Moser QC and E. Grieves, Barrister, instructed by H. Miller, Solicitor, appellant, the other parties to the proceedings being: [OSCURATO:PERSONA], represented by M. Konstantinidis, T. Scharf and E. Paasivirta, acting as Agents, with an address for service in Luxembourg, defendant at first instance, supported by: [OSCURATO:PERSONA], represented by E. Creedon, acting as Agent, E. Regan SC and N. Travers BL, intervener on appeal, [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], represented by E. Finnegan and G. Étienne, acting as Agents, intervener at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of A. Rosas (Rapporteur), President of the [OSCURATO:PERSONA], D. Šváby and C. Vajda, Judges, [OSCURATO:PERSONA]: Y. Bot, Registrar: A. [OSCURATO:PERSONA], having regard to the written procedure, having decided, after hearing the [OSCURATO:PERSONA], to proceed to judgment without an Opinion, gives the following [OSCURATO:PERSONA] 1 By his appeal, [OSCURATO:PERSONA] requests the [OSCURATO:PERSONA] to set aside the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 31 January 2012 in [OSCURATO:PERSONA] T‑527/09 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (‘the order under appeal’), by which the [OSCURATO:PERSONA] held that there was no longer any need to adjudicate on the action which he had brought for annulment of [OSCURATO:PERSONA] (EC) No 954/2009 of 13 October 2009 amending for the 114th time [OSCURATO:PERSONA] (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban (OJ 2009 L 269, p. 20; ‘the regulation at issue’) in so far as that act concerned him. Legal context and background to the dispute 2 On 26 August 2002, [OSCURATO:PERSONA] brought an action before the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] (now ‘the [OSCURATO:PERSONA]’) for annulment of [OSCURATO:PERSONA] (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing [OSCURATO:PERSONA] (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ 2002 L 139, p. 9), in so far as that act concerned him, on the grounds, inter alia, that it infringed the principles of proportionality and respect for human rights. 3 By its judgment of 12 July 2006 in [OSCURATO:PERSONA] T‑253/02 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2006] [OSCURATO:PERSONA]‑2139, the [OSCURATO:PERSONA] dismissed that action. 4 On 22 September 2006 [OSCURATO:PERSONA] appealed against that judgment. 5 In similar cases which gave rise to the judgment of 3 September 2008 in [OSCURATO:PERSONA] C‑402/05 P and C‑415/05 P [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] [2008] ECR I‑6351, the [OSCURATO:PERSONA] of Justice upheld the appeals brought by the appellants and, ruling on the actions for annulment which they had brought, annulled [OSCURATO:PERSONA] 881/2002 in so far as it included their names on the list of persons and entities covered by the freezing of funds on the ground, notably, that the rights of the defence, in particular the right to be heard, had patently not been respected. Since the [OSCURATO:PERSONA] considered that it could not be excluded that, on the merits of the case, the imposition of the measures concerned on [OSCURATO:PERSONA] and [OSCURATO:PERSONA] might prove to be justified, it maintained the effects of the regulation for a period that could not exceed three months, to allow the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] to remedy the infringements found. 6 In order to enable the [OSCURATO:PERSONA] to comply with that judgment, the Presidency of the [OSCURATO:PERSONA] requested the [OSCURATO:PERSONA] established by [OSCURATO:PERSONA] 1267 (1999) of 15 October 1999 on the situation in Afghanistan (‘the [OSCURATO:PERSONA]’) to provide it with a statement of the reasons for the inclusion of [OSCURATO:PERSONA] on that committee’s list. Following that step, the [OSCURATO:PERSONA] sent a letter to [OSCURATO:PERSONA] on 24 June 2009 informing him that the freezing of his funds within the [OSCURATO:PERSONA] was based on the grounds set out in the statement of reasons provided by the [OSCURATO:PERSONA] and attached to that letter. By letter of 23 July 2009, [OSCURATO:PERSONA] submitted detailed comments in reply to the [OSCURATO:PERSONA]. 7 On 13 October 2009, the [OSCURATO:PERSONA] adopted the regulation at issue, which confirmed entry of [OSCURATO:PERSONA] name on the list in Annex I to [OSCURATO:PERSONA] 881/2002 (‘the list at issue’). 8 By judgment of 3 December 2009 in [OSCURATO:PERSONA] C‑399/06 P and C‑403/06 P Hassan and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] [2009] ECR I‑11393, the [OSCURATO:PERSONA] set aside the judgment in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and annulled [OSCURATO:PERSONA] 881/2002 in so far as it concerned [OSCURATO:PERSONA], basing its decision essentially on legal grounds derived from its judgment in [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] . 9 By application lodged at the Registry of the [OSCURATO:PERSONA] on 6 April 2010, [OSCURATO:PERSONA] brought an action for annulment of the regulation at issue in so far as it concerns him. 10 On 17 October 2011, the [OSCURATO:PERSONA] decided to remove [OSCURATO:PERSONA] name from the list of persons, groups and entities the subject of the freezing of funds and financial resources provided for by [OSCURATO:PERSONA] 1267 (1999). 11 [OSCURATO:PERSONA] (EU) No 1081/2011 of 25 October 2011 amending for the 160th time [OSCURATO:PERSONA] 881/2002 (OJ 2011 L 280, p. 17), the entry relating to [OSCURATO:PERSONA] was accordingly deleted from the list at issue. 12 By document lodged at the Registry of the [OSCURATO:PERSONA] on 27 October 2011, the [OSCURATO:PERSONA] requested the [OSCURATO:PERSONA] to declare that the action for annulment had become devoid of purpose and that there was no longer any need to adjudicate on it. 13 In his written observations, lodged at the Registry of the [OSCURATO:PERSONA] on 21 November 2011, [OSCURATO:PERSONA] opposed the making of an order declaring that there was no need to adjudicate on the claims for annulment of the regulation at issue. Relying, inter alia, on paragraphs 46 to 51 of the judgment of 3 April 2008 in [OSCURATO:PERSONA] T‑229/02 PKK v [OSCURATO:PERSONA] , he put forward the arguments summarised in paragraph 21 of the order under appeal, to which the [OSCURATO:PERSONA] responded in that order. The order under appeal 14 The order under appeal was made on the basis of Article 113 of the Rules of Procedure of the [OSCURATO:PERSONA], according to which the [OSCURATO:PERSONA] may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceeding with an action or declare that the action has become devoid of purpose and that there is no need to adjudicate on it. 15 In paragraph 24 of the order under appeal, the [OSCURATO:PERSONA] recalled the case-law according to which the objective of the dispute, like an applicant’s interest in bringing proceedings, must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (see [OSCURATO:PERSONA] C‑362/05 P Wunenburger v [OSCURATO:PERSONA] [2007] ECR I‑4333, paragraph 42 and the case-law cited; see also, to that effect, [OSCURATO:PERSONA] T‑494/08 to T‑500/08 and T‑509/08 Ryanair v [OSCURATO:PERSONA] [2010] [OSCURATO:PERSONA]‑5723, paragraphs 42 and 43). 16 In paragraph 26 of the order under appeal, the [OSCURATO:PERSONA] also recalled the case-law according to which the withdrawal, or the repeal in certain circumstances, of the contested act by the defendant institution eliminates the subject-matter of the action for annulment, since it leads, for the applicant, to the desired outcome and gives him full satisfaction (see the order of 28 March 2006 in [OSCURATO:PERSONA] T‑451/04 Mediocurso v [OSCURATO:PERSONA] , paragraph 26 and the case-law cited, and the orders of 6 July 2011 in [OSCURATO:PERSONA] T‑142/11 SIR v [OSCURATO:PERSONA] , paragraph 18, and in [OSCURATO:PERSONA] T‑160/11 Petroci v [OSCURATO:PERSONA] , paragraph 15). 17 In paragraph 27 of the order under appeal, the [OSCURATO:PERSONA] stated that, by [OSCURATO:PERSONA] 1081/2011, the [OSCURATO:PERSONA] deleted the entry relating to [OSCURATO:PERSONA] name from the list at issue, although that entry, originally made by [OSCURATO:PERSONA] 881/2002, had been retained retroactively by the regulation at issue. According to the [OSCURATO:PERSONA], such a deletion entailed the repeal of the regulation at issue in so far as that act concerned [OSCURATO:PERSONA]. 18 In paragraphs 29 and 30 of the order under appeal, the [OSCURATO:PERSONA] recalled that it is true that, in an action for annulment, the applicant may retain an interest in the annulment of a measure which is repealed in the course of proceedings if the annulment of that measure may in itself have legal consequences (orders in [OSCURATO:PERSONA] T‑25/96 [OSCURATO:PERSONA]Unternehmen and Hapag-Lloyd v [OSCURATO:PERSONA] [1997] [OSCURATO:PERSONA]‑363, paragraph 16, and in [OSCURATO:PERSONA] T‑184/01 IMS Health v [OSCURATO:PERSONA] [2005] [OSCURATO:PERSONA]‑817, paragraph 38). In the case where an act is annulled, the institution which adopted it is required under Article 266 TFEU to take the necessary measures to comply with the judgment. Those measures do not involve the elimination of the act as such from the legal order of the [OSCURATO:PERSONA] because that is the very essence of its annulment by the [OSCURATO:PERSONA]. They involve, rather, the removal of the effects of the illegalities found in the judgment annulling the act. The institution concerned may thus be required to take adequate steps to restore the applicant to his original situation or to refrain from the adoption of an identical measure (see [OSCURATO:PERSONA]Unternehmen and Hapag-Lloyd v [OSCURATO:PERSONA] , paragraph 17 and the case-law cited). 19 In paragraph 31 of the order under appeal, the [OSCURATO:PERSONA] ruled, however, that in the case in point it was not apparent from the case file or [OSCURATO:PERSONA] arguments that, following the adoption of [OSCURATO:PERSONA] 1081/2011, the action for annulment was liable to procure for him an advantage within the meaning of the case-law referred to in paragraph 24 of that order, leading him to retain an interest in bringing proceedings. 20 In particular, as regards, firstly, the fact that the repeal of an act of an institution of the [OSCURATO:PERSONA] does not amount to recognition of its illegality and takes effect ex nunc , by contrast with a judgment annulling an act, by virtue of which the act annulled is removed retroactively from the legal order of the [OSCURATO:PERSONA] and is deemed never to have existed (see, to that effect, [OSCURATO:PERSONA] T‑481/93 and T‑484/93 Exporteurs in [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] [1995] [OSCURATO:PERSONA]‑2941, paragraph 46), the [OSCURATO:PERSONA] observed, in paragraph 32 of the order under appeal, that that fact cannot establish an interest on the part of [OSCURATO:PERSONA] in securing the annulment of the regulation at issue. 21 In paragraph 33 of the order under appeal, the [OSCURATO:PERSONA] explained that there is nothing to indicate that the removal ex tunc of the regulation at issue would procure any advantage for [OSCURATO:PERSONA]. In particular, there is nothing to establish that, in the event of a judgment annulling that regulation, the [OSCURATO:PERSONA] would be required, pursuant to Article 266 TFEU, to adopt measures designed to remove the effects of the illegality held to exist. 22 In paragraph 34 of the order under appeal, the [OSCURATO:PERSONA] further stated that recognition of the alleged illegality itself may, it is true, constitute one of the forms of compensation pursued in an action for damages under Articles 268 TFEU and 340 TFEU. On the other hand, according to the [OSCURATO:PERSONA], such recognition is not sufficient to establish a continuing interest in bringing proceedings under Articles 263 TFEU and 264 TFEU for the annulment of acts of the institutions. Were the position otherwise, an applicant would continue to retain an interest in seeking the annulment of an act, notwithstanding its withdrawal or repeal, and that would be incompatible with the case-law referred to in paragraphs 26 and 29 of the order under appeal and recalled in paragraphs 16 and 18 respectively of the present judgment. 23 As regards, secondly, the fact that an applicant may retain an interest in seeking the annulment of an act of a [OSCURATO:PERSONA] institution in order to prevent its alleged unlawfulness recurring in the future, the [OSCURATO:PERSONA] recalled, in paragraph 35 of the order under appeal, that such an interest in bringing proceedings, which follows from the first paragraph of Article 266 TFEU, can exist only if the alleged unlawfulness is liable to recur in the future independently of the circumstances of the case which gave rise to the action ( Wunenburger v [OSCURATO:PERSONA] , paragraphs 51 and 52). In the case in point, however, according to the [OSCURATO:PERSONA], there was nothing in the file to suggest that that might happen. On the contrary, as [OSCURATO:PERSONA] 1081/2011 was adopted in view of the specific position of [OSCURATO:PERSONA] and, apparently, of developments in the situation in Libya, the [OSCURATO:PERSONA] considered that it did not appear likely that the alleged unlawfulness might recur in the future independently of the circumstances which had given rise to the action. 24 As regards, thirdly, the argument that there is an overriding public interest in having the alleged infringement of a mandatory rule of international law penalised, the [OSCURATO:PERSONA] considered, in paragraph 36 of the order under appeal, that, whilst the [OSCURATO:PERSONA] should not be acknowledged as having any impunity in that regard, that argument was not sufficient to establish that [OSCURATO:PERSONA] had a personal interest in the continuation of the action. Even though, as observed by [OSCURATO:PERSONA], the [OSCURATO:PERSONA] must comply with mandatory rules of international law and is not entitled to adopt a decision based on information obtained under torture, [OSCURATO:PERSONA] is not, according to the [OSCURATO:PERSONA], entitled to act in the interests of the law or of the institutions and may put forward only such an interest and claims as relate to him personally (see, to that effect, [OSCURATO:PERSONA] 85/82 Schloh v [OSCURATO:PERSONA] [1983] ECR 2105, paragraph 14). 25 As regards, fourthly, its case-law according to which an applicant may retain an interest in securing the annulment of a decision imposing restrictive measures which has been repealed and replaced (see to that effect, in addition to PKK v [OSCURATO:PERSONA] , paragraphs 46 to 51, [OSCURATO:PERSONA] T‑228/02 Organisation des Modjahedines du peuple d’Iran v [OSCURATO:PERSONA] [2006] [OSCURATO:PERSONA]‑4665, paragraph 35; the judgment of 11 July 2007 in [OSCURATO:PERSONA] T‑327/03 Al-Aqsa v [OSCURATO:PERSONA] , paragraph 39; and [OSCURATO:PERSONA] T‑256/07 [OSCURATO:PERSONA] of Iran v [OSCURATO:PERSONA] [2008] [OSCURATO:PERSONA]‑3019, paragraph 48), the [OSCURATO:PERSONA] held, in paragraph 37 of the order under appeal, that that case‑law was developed in a specific context which differs from that in the case in point. Unlike the regulation at issue, the acts in question in those cases had not only been repealed, but had also been replaced by new acts, and the restrictive measures relating to the entities concerned had been maintained. The original effects of the acts which had been repealed thus continued, with regard to the entities concerned, through the acts which replaced them. Here, however, according to the [OSCURATO:PERSONA], [OSCURATO:PERSONA] 1081/2011 quite simply deletes [OSCURATO:PERSONA] name from the list at issue, thereby implicitly repealing the regulation at issue in so far as it concerns him, without replacing the measures laid down by it. The effects produced by the regulation at issue do not therefore continue to exist. In addition, according to the [OSCURATO:PERSONA], that case-law is based on the difference between the effects of the repeal and of the annulment of an act, a factor which is not relevant here, as is apparent from paragraph 32 of the order under appeal. 26 In paragraph 38 of the order under appeal, the [OSCURATO:PERSONA] stated that the above distinction is reinforced by the judgment in Hassan and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] . Firstly, instead of concluding automatically that the applicants concerned retained an interest in bringing proceedings in the cases which gave rise to that judgment, the [OSCURATO:PERSONA] of Justice raised, of its own motion, in paragraph 57 of the judgment, the question whether, in the light of the withdrawal of [OSCURATO:PERSONA] 881/2002 and its retroactive replacement by another act, it was still necessary to adjudicate on the cases concerned. Secondly, in paragraphs 59 to 63 of that judgment, the [OSCURATO:PERSONA] of Justice pointed out a certain number of particular circumstances of the cases before it, which led it to the conclusion, in paragraphs 64 and 65 of the judgment, that, ‘in these particular circumstances’, and in contrast to what had been held in the order in [OSCURATO:PERSONA] C‑123/92 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [1993] ECR I‑809, the adoption of the new act, and the concomitant repeal of the regulation in question, could not be regarded as equivalent to annulment, pure and simple, of that regulation. Those particular circumstances do not, however, according to the [OSCURATO:PERSONA], obtain in the case in point. More specifically, in the case in point, [OSCURATO:PERSONA] 1081/2011 is definitive inasmuch as it may no longer be the object of an action for annulment. Consequently, it is inconceivable that the regulation at issue might come back into force so far as [OSCURATO:PERSONA] is concerned, contrary to what was held by the [OSCURATO:PERSONA] of Justice in paragraph 63 of Hassan and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] . 27 As regards, fifthly, possible detrimental consequences which might, as the case may be, follow from the alleged unlawfulness of the regulation at issue, the [OSCURATO:PERSONA] pointed out, in paragraph 39 of the order under appeal, that, contrary to [OSCURATO:PERSONA] submissions, the action brought by him did not include any claim for compensation in respect of material or non-material damage, inter alia in the form of damage done to his reputation. 28 [OSCURATO:PERSONA] added, in paragraph 40 of the order under appeal, that, in any event, [OSCURATO:PERSONA] could seek compensation for such damage in an action based on Article 268 TFEU and the second and third paragraphs of Article 340 TFEU as the bringing of such an action does not have to be preceded by an action for annulment of the act purportedly giving rise to the alleged damage, and it referred in that regard to [OSCURATO:PERSONA] T‑178/98 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2000] [OSCURATO:PERSONA]‑3331, paragraph 49 and the case-law cited. 29 [OSCURATO:PERSONA] concluded, in paragraph 42 of the order under appeal, that there was no longer any need to adjudicate on the claims for annulment of the regulation at issue. Procedure before the [OSCURATO:PERSONA] and forms of order sought on appeal 30 By order of the President of the [OSCURATO:PERSONA] of 5 September 2012, [OSCURATO:PERSONA] was granted leave to intervene in support of the form of order sought by the [OSCURATO:PERSONA]. 31 [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] should: –        set aside the order under appeal; –        declare that his action for annulment was not devoid of purpose; –        refer the case back to the [OSCURATO:PERSONA] for it to determine the action for annulment; and –        order the [OSCURATO:PERSONA] to pay the costs. 32 [OSCURATO:PERSONA], [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] contend that the [OSCURATO:PERSONA] should dismiss the appeal and order [OSCURATO:PERSONA] to pay the costs. The appeal 33 In support of his appeal, [OSCURATO:PERSONA] asserts his right to an effective remedy and to effective judicial protection. In addition to the [OSCURATO:PERSONA] case-law ([OSCURATO:PERSONA] C‑50/00 P Unión de [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2002] ECR I‑6677, paragraphs 38 and 39, and [OSCURATO:PERSONA] C‑229/05 PKK and KNK v [OSCURATO:PERSONA] [2007] ECR I‑439, paragraphs 76 and 77), he relies upon Articles 47 and 52(3) of the Charter of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] (‘the Charter’) and upon Article 7 of the Charter, a provision which is equivalent to Article 8 of the [OSCURATO:PERSONA] for the Protection of [OSCURATO:PERSONA] and [OSCURATO:PERSONA], signed at Rome on 4 November 1950 (‘the ECHR’), and which provides that everyone has the right to respect for his or her private and family life, home and communications. 34 More specifically, [OSCURATO:PERSONA] relies, in support of his arguments, upon two pleas in law, the first of which is in three parts. [OSCURATO:PERSONA] plea [OSCURATO:PERSONA] part of the first plea: error of law committed by the [OSCURATO:PERSONA] in failing to hear the [OSCURATO:PERSONA] 35 [OSCURATO:PERSONA] contends that, in failing to hear the [OSCURATO:PERSONA] before giving its decision, the [OSCURATO:PERSONA] infringed Article 114(4) of its Rules of Procedure, which is referred to by Article 113 thereof on the basis of which the order under appeal was adopted. 36 However, as the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] have correctly pointed out, the [OSCURATO:PERSONA] obligation to hear the [OSCURATO:PERSONA] before giving a decision on an action must be read in the light of Articles 2(2), 18 and 19 of its Rules of Procedure, from which it is apparent, first, that the designation of a Judge of the [OSCURATO:PERSONA] as [OSCURATO:PERSONA] is optional where the [OSCURATO:PERSONA] sits as a [OSCURATO:PERSONA] and, second, that references to the [OSCURATO:PERSONA] in those Rules of Procedure are to apply only where a Judge has in fact been designated as [OSCURATO:PERSONA] (order of 25 June 2009 in [OSCURATO:PERSONA] C‑580/08 P Srinivasan v Ombudsman , paragraph 35; order of 22 October 2010 in [OSCURATO:PERSONA] C‑266/10 P Seacid v Parliament and [OSCURATO:PERSONA] , paragraph 11; judgment of 22 September 2011 in [OSCURATO:PERSONA] C‑426/10 P Bell & Ross v [OSCURATO:PERSONA] I‑0000, paragraph 28; and judgment of 28 May 2013 in [OSCURATO:PERSONA] C‑239/12 P Abdulrahim v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] ECR I‑0000, paragraph 38). 37 Since no [OSCURATO:PERSONA] was designated for the purpose of dealing with the action brought by [OSCURATO:PERSONA] before the [OSCURATO:PERSONA], which was assigned to its [OSCURATO:PERSONA], there was no obligation to hear an [OSCURATO:PERSONA] before declaring that there was no longer any need to adjudicate. 38 Consequently, the first part of the first plea is unfounded. [OSCURATO:PERSONA] part of the first plea: breach of the right to a fair hearing 39 [OSCURATO:PERSONA] contends that, by failing to invite him to make representations relating to the need for the oral part of the procedure, the [OSCURATO:PERSONA] infringed the right to a fair hearing. He points out that Article 120 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, in the version applicable on the date when the appeal was brought, provides that a party may make representations prior to any decision being taken as to whether there is an oral part of the procedure. [OSCURATO:PERSONA] submission, there is no justification for a different approach before the [OSCURATO:PERSONA] and Article 114 of the Rules of Procedure of the [OSCURATO:PERSONA], as interpreted by the latter, does not comply with Article 47 of the Charter. 40 It must be pointed out that the application of Article 113 of the Rules of Procedure of the [OSCURATO:PERSONA] does not guarantee that an oral procedure will be opened, as the [OSCURATO:PERSONA] may, under Article 114(3) of its Rules of Procedure, to which Article 113 refers, give its decision following a solely written procedure ([OSCURATO:PERSONA] C‑547/03 P AIT v [OSCURATO:PERSONA] [2006] ECR I‑845, paragraph 35; [OSCURATO:PERSONA] C‑417/04 P Regione Siciliana [2006] ECR I‑3881, paragraph 37; and Abdulrahim v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] , paragraph 42). 41 However, under Article 113 of its Rules of Procedure the [OSCURATO:PERSONA] is required to hear the parties before deciding whether there exists any absolute bar to proceeding with an action or before declaring that the action has become devoid of purpose and that there is no need to adjudicate on it. In accordance with that provision, [OSCURATO:PERSONA] was requested to express his views in writing on the conclusions to be drawn from the adoption of [OSCURATO:PERSONA] 1081/2011, in particular in the light of the purpose of his action. He could therefore expect that, in the event that the [OSCURATO:PERSONA] considered that the action had become devoid of purpose, it would give its decision by means of an order, since that is one of the situations, referred to in Article 113 of the Rules of Procedure, in which the [OSCURATO:PERSONA] may give its decision at any time. 42 Accordingly, contrary to [OSCURATO:PERSONA] assertions, the [OSCURATO:PERSONA] did not infringe the right to a fair hearing guaranteed by Article 47 of the Charter by requesting him to express his views on whether the action retained a purpose and by not asking him whether it was desirable to open the oral part of the procedure. 43 It follows from the foregoing that the second part of the first plea is unfounded. Third part of the first plea: error of law committed by the [OSCURATO:PERSONA] in failing to open the oral part of the procedure 44 By the third part of the first plea, [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] erred in law by failing to open the oral part of the procedure. He contends that it is only in exceptional circumstances that the [OSCURATO:PERSONA] has the option of omitting the oral part of the procedure, which is an important component of the means available to an applicant to advance his case effectively. [OSCURATO:PERSONA] submission, the oral part of the procedure should be dispensed with only in cases which raise no crucial issue of law and/or fact. He notes that, following the response which he sent to the [OSCURATO:PERSONA] relating to the retention of his interest in bringing proceedings, and the short observations of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] moved straight to judgment. 45 [OSCURATO:PERSONA] contends that almost the entirety of the [OSCURATO:PERSONA] reasoning comprises issues and case-law which were not subject to discussion and concerning which he has had no opportunity to be heard either in writing or orally. Leaving aside the case-law cited by the [OSCURATO:PERSONA], the latter in particular raised factual issues concerning the situation in Libya although [OSCURATO:PERSONA] is Tunisian and his case is not linked in any way to Libya. 46 As the [OSCURATO:PERSONA] points out, the [OSCURATO:PERSONA] could, in accordance with Articles 113 and 114(3) of its Rules of Procedure, make the order under appeal without opening the oral part of the procedure, since it considered that it had sufficient information and [OSCURATO:PERSONA] had had the opportunity – of which he, moreover, made use – to present, at the request of the [OSCURATO:PERSONA], his written observations on the claims of the defendant institutions that there was no need to adjudicate, and thereby to put forward the arguments on the basis of which he opposed those claims. 47 As regards the grounds of the order under appeal and the case-law mentioned in it, it should be pointed out that, whilst it is incumbent upon the [OSCURATO:PERSONA] to respect the parties’ rights of defence, it cannot, however, be obliged to request them to comment on the reasoning which it is minded to adopt in order to decide the case before it ( Abdulrahim v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] , paragraph 49). 48 It follows from the foregoing that the third part of the first plea is likewise unfounded and that, therefore, the first plea cannot be upheld. [OSCURATO:PERSONA] plea: error of law committed by the [OSCURATO:PERSONA] in holding that the action had become devoid of purpose Arguments of the parties 49 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] applied too high a test for the concept of an interest in bringing proceedings. In his submission, an action is not to be declared devoid of purpose if the slightest prejudice suffered is capable of being remedied by continuing to examine that action, since that procures an advantage for the applicant. In the case in point, he considers that his action for annulment is capable of ending the continuous breach of his right, referred to in Article 8 of the ECHR, to respect for his private and family life, of restoring his reputation which has been stained by allegations of terrorism for more than ten years, of removing bars to employment and travel, of removing the effects of his inclusion on the list at issue on him in that it affects and restricts his family, of ensuring that the procedural defects complained of are never repeated against him or any other person and of providing a basis for claiming damages. 50 He submits that the [OSCURATO:PERSONA] erred in law and misapplied the test of advantage from the annulment in paragraph 33 of the order under appeal, by making the existence of an advantage dependent upon the adoption by the [OSCURATO:PERSONA] and/or the [OSCURATO:PERSONA], pursuant to Article 266 TFEU, of measures designed to remove the effects of the illegality held to exist. In certain situations, annulment of an act does not require the adoption of any subsequent measure. Nor can a declaration of nullity be dependent on whether the author of the act is required to act subsequently in a certain way. 51 According to [OSCURATO:PERSONA], the [OSCURATO:PERSONA] decision infringes the procedural guarantee, flowing from Article 8 of the ECHR, that he must be able to challenge the assertions made against him so that the prejudice caused by the institution is rectified. Acceptance that there is no interest in bringing proceedings would enable the [OSCURATO:PERSONA], through repealing the contested measure, to circumvent review by the Courts of the [OSCURATO:PERSONA], which is inconsistent with the principle of the rule of law and would remove accountability of that institution. 52 [OSCURATO:PERSONA] states that the [OSCURATO:PERSONA] accepts that, notwithstanding a lack of prejudice, the possibility of future repetition of the illegality is sufficient for it to be considered that an interest in the proceedings is retained ( Wunenburger v [OSCURATO:PERSONA] , paragraphs 58 and 59). He submits that, here, the breach of Article 8 of the ECHR is based upon the use of material obtained through torture. However, the [OSCURATO:PERSONA] ignored the systemic nature of the irregularities relied upon in support of his action, which are liable to be repeated. He therefore has a clear interest in this point being adjudicated upon since it provides the basis for his designation as a person associated with a terrorist organisation. 53 In any event, [OSCURATO:PERSONA] considers that, having regard to the fact that the political situations that give rise to restrictive measures such as those laid down by the regulation at issue change rapidly, the [OSCURATO:PERSONA] approach is particularly worrying. No reasons are stated for the removal of his name from the list at issue and the [OSCURATO:PERSONA] is not able to conclude that he will not be entered on that list again. His inclusion on that list could be relied upon as a basis, or in support, of any future application by a [OSCURATO:PERSONA] to have him relisted. Finally, the impact of fast-changing political situations cannot be ruled out, as accepted by the [OSCURATO:PERSONA] by reference to the situation in Libya. 54 [OSCURATO:PERSONA] points out that [OSCURATO:PERSONA] sought the lifting of the restrictive measures concerning him and that the adoption of [OSCURATO:PERSONA] 1081/2011 had that effect. It recalls in this connection the case-law according to which an interest in obtaining the annulment of a repealed measure presupposes that the annulment of that measure may in itself have legal consequences. 55 [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] contest [OSCURATO:PERSONA] arguments that he retains an interest in bringing proceedings on account of restoration of his reputation and prevention of his reinclusion on the list at issue. [OSCURATO:PERSONA] observes that a judgment could not have referred to the time before 13 October 2009, the date upon which the regulation at issue was adopted. Furthermore, in his action [OSCURATO:PERSONA] raised pleas concerning misuse of power and infringement of rights of the defence, of the right to judicial protection and of his right to property, but he did not plead that there was an error of assessment as to whether or not he was associated with Al-Qaida. In those circumstances, a judgment annulling the regulation at issue on the basis of procedural pleas would not have had the effect of rehabilitating him. 56 [OSCURATO:PERSONA], [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] also submit that the absence of a judgment by the [OSCURATO:PERSONA] on the merits does not represent a risk that the inclusion of [OSCURATO:PERSONA] on the list will come back into force. [OSCURATO:PERSONA] (EU) No 1286/2009 of 22 December 2009 amending [OSCURATO:PERSONA] 881/2002 (OJ 2009 L 346, p. 42) inserted into [OSCURATO:PERSONA] 881/2002 Article 7a, under which a new listing decision can be taken only if the [OSCURATO:PERSONA] obtains a statement of reasons from the [OSCURATO:PERSONA], which it must communicate to the person concerned without delay after adoption of its listing decision so that that person may put forward his observations for the purposes of any review by the [OSCURATO:PERSONA] of its decision. In the case in point, the decision of the [OSCURATO:PERSONA] to remove [OSCURATO:PERSONA] from the [OSCURATO:PERSONA] list leaves no doubt that he will not be re-entered on that list in the absence of a change in the factual circumstances. Moreover, a judgment by the [OSCURATO:PERSONA] would have no bearing on the [OSCURATO:PERSONA] decision to remove [OSCURATO:PERSONA] from that list from October 2011. 57 As regards the systemic nature of the alleged unlawful acts, the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] reiterate that the action for annulment concerned solely [OSCURATO:PERSONA] inclusion on the list at issue and that an annulment would have concerned only him. The question of a systemic effect therefore does not arise. 58 [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] dwell, finally, upon the distinction between the present case and those which gave rise to the judgment in PKK v [OSCURATO:PERSONA] and to the other judgments cited in the appeal. They point out that in those cases the applicants were still listed when their applications for annulment were decided upon, whereas here [OSCURATO:PERSONA] name had been removed from the list at issue. [OSCURATO:PERSONA] also compares the present case with the case which gave rise to the judgment of 21 December 2011 in [OSCURATO:PERSONA] C‑27/09 P France v [OSCURATO:PERSONA] of Iran ECR I‑0000, paragraphs 43 to 50, in which the [OSCURATO:PERSONA] considered that the appeal still had a purpose because it maintained that the decision to include the [OSCURATO:PERSONA] of Iran in the list set out in the annex to [OSCURATO:PERSONA] 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93) should be retained in the [OSCURATO:PERSONA] legal order. In the case in point, there is no dispute between [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] regarding his removal from the list at issue. Findings of the [OSCURATO:PERSONA] 59 In paragraph 24 of the order under appeal, the [OSCURATO:PERSONA] recalled the settled case-law according to which an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible. That purpose must, like the interest in bringing proceedings, continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (see Wunenburger v [OSCURATO:PERSONA] , paragraph 42 and the case-law cited; [OSCURATO:PERSONA] C‑373/06 P, C‑379/06 P and C‑382/06 P Flaherty and Others v [OSCURATO:PERSONA] [2008] ECR I‑2649, paragraph 25; and Abdulrahim v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] , paragraph 61). 60 In various circumstances the [OSCURATO:PERSONA] of Justice has acknowledged that an applicant’s interest in bringing proceedings does not necessarily disappear because the act challenged by him has ceased to have effect in the course of proceedings. 61 [OSCURATO:PERSONA] has thus held, in particular, that an applicant may retain an interest in claiming the annulment of a decision either in order to be restored to his original position ([OSCURATO:PERSONA] 92/78 Simmenthal v [OSCURATO:PERSONA] [1979] ECR 777, paragraph 32) or in order to induce the author of the contested act to make suitable amendments in the future, and thereby avoid the risk that the unlawfulness alleged in respect of that act will be repeated (see, to that effect, Simmenthal v [OSCURATO:PERSONA] , paragraph 32; [OSCURATO:PERSONA] 53/85 AKZO Chemie and AKZO Chemie UK v [OSCURATO:PERSONA] [1986] ECR 1965, paragraph 21; Wunenburger v [OSCURATO:PERSONA] , paragraph 50; and Abdulrahim v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] , paragraph 63). 62 In a case between an undertaking which had been unlawfully excluded from a tender procedure and the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] held that even where, because of the circumstances, it proves impossible to fulfil the obligation, owed by the institution whose act has been annulled, to take the necessary measures to comply with the judgment annulling the act, the application for annulment may retain an interest as the basis for possible proceedings for damages ([OSCURATO:PERSONA] 76/79 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [1980] ECR 665, paragraph 9). 63 It is apparent from that case-law that the question whether an applicant retains his interest in bringing proceedings must be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained ( Abdulrahim v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] , paragraph 65). 64 Before both the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] of Justice, [OSCURATO:PERSONA] has put forward various reasons which, in his submission, show that he retains his interest in bringing proceedings despite the fact that [OSCURATO:PERSONA] 1081/2011 removed his name from the list at issue. However, it is not necessary to examine all the grounds relied upon by [OSCURATO:PERSONA] if one of them is sufficient to establish retention of the interest in bringing proceedings. 65 In paragraphs 28 and 31 of the order under appeal, the [OSCURATO:PERSONA] held that, inasmuch as [OSCURATO:PERSONA] 1081/2011 deleted the entry relating to [OSCURATO:PERSONA] name from the list at issue, its adoption gave him full satisfaction, so that his action for annulment was no longer liable to procure an advantage for him and, consequently, his interest in bringing proceedings had disappeared. 66 It is true that, in paragraph 32 of the order under appeal, the [OSCURATO:PERSONA] correctly recalled the distinction between the repeal of an act of an institution of the [OSCURATO:PERSONA], which does not amount to recognition of its illegality and takes effect ex nunc , and a judgment annulling an act, by virtue of which the act annulled is removed retroactively from the legal order and is deemed never to have existed. 67 However, the [OSCURATO:PERSONA] wrongly concluded, in the final clause of paragraph 32 of the order under appeal, that that difference would not be able to substantiate an interest on the part of [OSCURATO:PERSONA] in securing the annulment of the regulation at issue. 68 It is to be borne in mind that restrictive measures adopted under [OSCURATO:PERSONA] 881/2002 have substantial negative consequences and a considerable impact on the rights and freedoms of the persons covered (see, to that effect, [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] , paragraphs 361 and 375). Apart from the freezing of funds as such which, through its broad scope, seriously disrupts both the working and the family life of the persons covered (see, inter alia, [OSCURATO:PERSONA] C‑340/08 M and Others [2010] ECR I‑3913) and impedes the conclusion of numerous legal acts (see, inter alia, [OSCURATO:PERSONA] C‑117/06 Möllendorf and Möllendorf-Niehuus [2007] ECR I‑8361), account must be taken of the opprobrium and suspicion that accompany the public designation of the persons covered as being associated with a terrorist organisation. 69 The interest of an applicant such as [OSCURATO:PERSONA] in bringing proceedings is retained, despite the removal of his name from the list at issue, for the purpose of having the Courts of the [OSCURATO:PERSONA] recognise that he should never have been included on the list or that he should not have been included under the procedure which was adopted by the [OSCURATO:PERSONA] institutions. 70 Indeed, whilst recognition of the illegality of the contested act cannot, as such, compensate for material harm or for interference with one’s private life, it is nevertheless capable, as [OSCURATO:PERSONA] has submitted, of rehabilitating him or constituting a form of reparation for the non-material harm which he has suffered by reason of that illegality, and of thereby establishing that he retains his interest in bringing proceedings (see, to that effect, [OSCURATO:PERSONA] 155/78 M. v [OSCURATO:PERSONA] [1980] ECR 1797, paragraph 6; [OSCURATO:PERSONA] C‑343/87 Culin v [OSCURATO:PERSONA] [1990] ECR I‑225, paragraph 26 and the case-law cited; and Abdulrahim v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] , paragraph 72). 71 Therefore the [OSCURATO:PERSONA], in paragraphs 28 and 31 of the order under appeal, incorrectly inferred from the removal by [OSCURATO:PERSONA] 1081/2011 of [OSCURATO:PERSONA] name from the list at issue that he had obtained full satisfaction and that his action for annulment was accordingly no longer such as to procure for him an advantage. 72 Contrary to the submissions of the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA], it is unimportant that the pleas for annulment relied upon in the judicial proceedings relate to misuse of powers, the statement of reasons for the act in question or compliance with an applicant’s procedural rights. Annulment on such grounds of a decision freezing funds would be liable to give the applicant satisfaction in that it gives rise to serious doubts as to the way in which the body concerned exercised its powers in his regard. 73 It is also unimportant that a judgment ordering annulment cannot refer to the period before inclusion on the list at issue. [OSCURATO:PERSONA] was already included on the [OSCURATO:PERSONA] list, the fact remains that including him on the list at issue could have increased the opprobrium and suspicion in his regard and, consequently, the non-material harm which he claims to have suffered. 74 It should be added that the lists established by directly applicable [OSCURATO:PERSONA] regulations are not of the same nature and do not have the same legal effect, in the territory of the [OSCURATO:PERSONA], as the [OSCURATO:PERSONA] list. 75 In paragraph 34 of the order under appeal, the [OSCURATO:PERSONA] held that recognition of the alleged illegality is not sufficient to establish a continuing interest in bringing proceedings under Articles 263 TFEU and 264 TFEU for the annulment of acts of the institutions because, were the position otherwise, an applicant would continue to retain an interest in seeking the annulment of an act, notwithstanding its withdrawal or repeal, and that would be incompatible with the case-law referred to in paragraphs 26 and 29 of the order under appeal and recalled in paragraphs 16 and 18 of the present judgment. 76 That conclusion contradicts, however, the [OSCURATO:PERSONA] of Justice’s case-law, from which it is apparent that if, as in the case in point, recognition of the alleged illegality is such as to procure an advantage for the applicant, it establishes that his interest in bringing proceedings for annulment is retained even where the contested act has ceased to have effect after he brought his action (see, to that effect, M. v [OSCURATO:PERSONA] , paragraphs 5 and 6; AKZO Chemie and AKZO Chemie UK v [OSCURATO:PERSONA] ; Culin v [OSCURATO:PERSONA] , paragraphs 27 to 29; and Abdulrahim v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] , paragraph 79). 77 Finally, that conclusion can likewise not be inferred from the case-law of the [OSCURATO:PERSONA] mentioned by the latter in paragraph 29 of the order under appeal and recalled in paragraph 18 of the present judgment, because that case-law is founded on the premiss, explained in paragraph 30 of the order under appeal, that an interest in bringing proceedings exists only where the annulment of an act makes it necessary for measures to be taken by the institution which adopted the act, in accordance with Article 266 TFEU. However, the interest in securing the annulment of the contested act is retained where, as in the case in point, its annulment is such as to procure an advantage for the applicant, irrespective of whether it will be unnecessary or in practice impossible for the defendant institution to adopt measures under Article 266 TFEU to comply with the judgment annulling that act (see, to that effect , [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 9; M. v [OSCURATO:PERSONA] , paragraph 6; AKZO Chemie and AKZO Chemie UK v [OSCURATO:PERSONA] , paragraph 21; Culin v [OSCURATO:PERSONA] , paragraph 26; and Abdulrahim v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] , paragraph 80). 78 It follows from the foregoing that the [OSCURATO:PERSONA] conclusion set out in paragraph 34 of the order under appeal is vitiated by an error of law. 79 Also, the [OSCURATO:PERSONA] erred in law by concluding, in paragraphs 37 and 38 of the order under appeal, that [OSCURATO:PERSONA] lacks an interest in bringing proceedings, inter alia, because the restrictive measures adopted in his regard by the regulation at issue were not maintained and the abolition of those measures by [OSCURATO:PERSONA] 1081/2011 is definitive, contrary to the situation covered in PKK v [OSCURATO:PERSONA] , a judgment relied upon by [OSCURATO:PERSONA] in support of his line of argument. The definitive repeal of the regulation at issue, by the removal of [OSCURATO:PERSONA] name from the list at issue, does not prevent an interest in bringing proceedings from continuing to exist so far as concerns the effects of the regulation at issue between the date of its entry into force and that of its repeal. 80 In any event, in the light of the circumstances of the present case and, in particular, the extent of the damage to [OSCURATO:PERSONA] reputation resulting from his inclusion on the list at issue for a considerable period, his interest in bringing proceedings continues to exist for the purpose of seeking annulment of the regulation at issue in so far as it concerns him and of securing, should his action be upheld, his rehabilitation and, thus, some form of reparation for the non‑material harm suffered by him. 81 It follows from all the foregoing that the [OSCURATO:PERSONA] erred in law in holding that [OSCURATO:PERSONA] lacked an interest in bringing proceedings and that, accordingly, there was no longer any need to adjudicate on his action for annulment of the regulation at issue in so far as it concerns him. 82 Consequently, the order under appeal must be set aside in so far as it decides that there is no longer any need to adjudicate on the action for annulment brought before the [OSCURATO:PERSONA] by [OSCURATO:PERSONA]. Referral of the case back to the [OSCURATO:PERSONA] 83 Under the first paragraph of Article 61 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], the latter may, where the decision of the [OSCURATO:PERSONA] has been set aside, either itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the [OSCURATO:PERSONA] for judgment. 84 Since the [OSCURATO:PERSONA] held that there was no longer any need to adjudicate on the action for annulment without having examined its admissibility or the substance of the dispute, the [OSCURATO:PERSONA] considers that the state of the proceedings do not permit final judgment to be given in the matter and that it is appropriate to refer the case back to the [OSCURATO:PERSONA] and to reserve the costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Sets aside the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 31 January 2012 in [OSCURATO:PERSONA] T‑527/09 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] in so far as the order decides that there is no longer any need to adjudicate on the action for annulment brought before the [OSCURATO:PERSONA] by [OSCURATO:PERSONA]; 2. Refers the case back to the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] for it to rule again on [OSCURATO:PERSONA] action for annulment; 3. Reserves the costs. [Signatures] * Language of the case: English.