Case C-354/04 P, Gestoras Pro Amnistía and Others v Council

It is well known that the Court’s jurisdiction, as defined by Article 35(1) EU, to give preliminary rulings does not extend to common positions but is limited to rulings on the validity and interpretation of framework decisions and decisions, on the interpretation of conventions established under Title VI and on the validity and interpretation of the measures implementing them.

In 2001, the Council adopted Common Position 2001/340/CFSP on the application of specific measures to combat terrorism. The legal bases of this Common Position were Articles 15 EU and 34 EU. A list of persons, groups or entities involved in terrorist acts appeared in the Annex to that common position and included Gestoras Pro Amnistía.

On 7 June 2004 the Court of First Instance rejected the actions brought (inter alia) by this organisation, by which they sought damages for the harm allegedly suffered as a result of their inclusion in the aforementioned list.

The organisation subsequently appealed before the Court of Justice, inter alia invoking the right to effective judicial protection under Article 6(2) EU. In essence they argued that they had no means of challenging the inclusion in the list annexed to Common Position 2001/931 and that the order under appeal prejudiced their right to effective judicial protection.

The Court first of all reiterated “as regards the Union, the treaties have established a system of legal remedies in which, by virtue of Article 35 EU, the jurisdiction of the Court is less extensive under Title VI of the Treaty on European Union than it is under the EC Treaty (see Case C-105/03 Pupino [2005] ECR I‑5285).

The Court added that it followed from Article 6 EU that the Union was founded on the principle of the rule of law and it respected fundamental rights as general principles of Community law. It followed that the institutions were subject to review of the conformity of their acts with the treaties and the general principles of law, just like the Member States when they implement the law of the Union.

The Court pointed out that the Article 35(1) did not enable national courts to refer questions to the Court for a preliminary ruling on a common position, for common positions were not supposed to produced of themselves legal effects in relation to third parties.

The Court subsequently held that given that the procedure enabling the Court to give preliminary rulings was designed to guarantee observance of the law in the interpretation and application of the Treaty, the right to make a reference for a preliminary ruling in the context of the third pillar must therefore exist in respect of all measures adopted by the Council, whatever their nature or form, which were intended to have legal effects in relation to third parties.

Therefore, a national court hearing a dispute which indirectly raised the issue of the validity or interpretation of a common position adopted in the context of the third pillar and which had serious doubt whether that common position was really intended to produced legal effects in relation to third parties, might ask the Court to give a preliminary ruling.

It would then fall to the Court to find, where appropriate, that the common position was intended to produce legal effects in relation to third parties, to accord it its true classification and to give a preliminary ruling.

The Court held that therefore the appellants were wrong to maintain that the contested common position left them without a remedy, contrary to the requirement of effective judicial protection, and that the order under appeal prejudiced their right to such protection.

UPDATE: see also yesterdays Segi case, in which the Court used a similar line of argument.