June 18
2021
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7th June 2021
External Relations & Trade

Analysis: “Advocate General Rantos in Council v Hamas: Council’s lack of signature of the statement of reasons for restrictive measures is not a valid ground for annulment” by Celia Challet

Advocate General (AG) Rantos delivered his Opinion in appeal case Council v Hamas (C-833/19 P) on 3 June 2021 concerning the validity of the counter-terrorism restrictive measures imposed against Hamas. What started as a classic action for annulment against EU restrictive measures has become a case of particular importance for the procedural rules applicable to these sanctions.

The key aspect of the case revolves around the following facts: in 2018, the Council of the EU adopted CFSP Decisions and TFEU Regulations that maintained the listing of Hamas. They were published in the Official Journal of the EU. The Council also notified these acts and their statements of reasons to Hamas. As often occurs in the field of restrictive measures, the statement of reasons were not signed by the Council.

In its Hamas v Council judgment (T-308/18), the General Court annulled the 2018 acts based on this lack of signature. It considered that it resulted in a lack of authentication of the acts and, thus, infringed an essential procedural requirement within the meaning of Article 263 TFEU. The General Court also ruled that by virtue of the first subparagraph of Article 297(2) TFEU and of Article 15 of the Council’s Rules of Procedure, and in light of the obligation to state reasons under Article 296 TFEU, the Council’s obligation to sign its acts also applies to their statements of reasons.

In his Opinion, AG Rantos suggests the Grand Chamber annul the judgment. He first stresses that the Council’s lack of signature of the statement of reasons amounts to a lack of authentication. In particular, he rejects the Council’s attempted distinction between the authentication of an act (following its publication in the Official Journal or its notification to the addressees) and its signature, which ensures the stability of the adopted text. The AG also compares Article 15 of the Council’s Rules of procedure with other institutions’ Rules of the Procedure and concludes that the main purpose of the Council’s obligation of signature is to authenticate the acts.

The AG then addresses the scope of the signature requirement under the first subparagraph of Article 297(2) TFEU. According to this provision, the decisions that do not specify their addressees must be signed by the President of the relevant institution. By contrast, the decisions that specify their addressees must be notified to them. However, CFSP acts imposing restrictive measures have a particular nature. On the one hand, they are of general application: they oblige a category of recipients determined in a general and abstract manner to implement sanctions. On the other, they are individual decisions: they target specific persons and entities listed in an annex. AG Rantos therefore suggests a clarification: the elements of the acts which are of general application must be signed, whereas those relating to individual decisions must only be notified to the addresses. The statements of reasons, he argues, fall within that second category.

AG Rantos also stresses that the acts imposing restrictive measures are inseparably joined to their statements of reasons during their procedure of adoption. As a result, the President and the Secretary General of the Council’ signature of the acts showed this institution’s will to also adopt the statements of reasons. Finally, based on this inseparability of the acts and the statement of reasons, the AG considers that the Council’s lack of signature of the statement of reasons did not infringe its obligation of motivation under Article 296 TFEU.

The Court of Justice’s ruling will thus have a crucial impact not only on the Council’s sanctions practice but on the scope of the obligation to sign the annexes to the acts of all EU institutions.

The Opinion is available here.

 

Celia Challet is Ph.D. candidate at Ghent University (Belgium) and Academic Assistant in EU law at the College of Europe.

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