In Case T-299/04

ORDER OF THE COURT OF FIRST INSTANCE (Second Chamber)

18 November 2005 (*)

(Common foreign and security policy – Council common positions – Specific restrictive measures directed against certain persons and entities with a view to combating terrorism – Action for annulment – Manifest lack of jurisdiction – Time-limits – Admissibility)

In Case T-299/04,

Abdelghani Selmani, residing in Dublin (Ireland), represented by C. ÓBriain, Solicitor,

applicant,

v

Council of the European Union, represented by E. Finnegan and D. Canga Fano, acting as Agents,

and

Commission of the European Communities, represented by J.Enegren and C.Brown, acting as Agents, with an address for service in Luxembourg,

defendants,

ACTION primarily for annulment of Article 2 of Council Regulation (EC) No2580/2001 of 27 December 2001 on specific restricted measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L344, p. 70) and Article 1 of Council Decision 2004/306/EC of 2 April 2004 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2003/902/EC (OJ 2004 L 99, p. 28) and all decisions adopted by the Council on the basis of Regulation No 2580/2001 and having the same effect as Decision 2004/306, in so far as those measures apply to the applicant,

THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Second Chamber),

composed of J. Pirrung, President, N.J. Forwood and S. Papasavvas, Judges,

Registrar: E. Coulon,

makes the following

Order

Background to the dispute

1The applicant claims to be an Algerian national. He left his country of origin after being tortured a number of times by the Algerian police and, since 28 December 2002, has resided in Ireland where he was granted refugee status on 19 March 2004.

2On 28 September 2001, the United Nations Security Council (‘the Security Council’) adopted Resolution 1373 (2001) adopting strategies to combat terrorism by all means and, in particular, to prevent its financing. Paragraph 1(c) of that resolution provides, inter alia, that all States are to freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of, such persons and entities.

3On 27 December 2001, considering that Community action was necessary to implement Resolution 1373 (2001) of the Security Council, in accordance with the obligations on its Member States under the United Nations Charter, the Council adopted Common Position 2001/931/CFSP on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93). That common position was adopted under Article 15 EU, falling within Title V of the EU Treaty entitled ‘Provisions on a common foreign and security policy’ (CFSP) and Article 34 EU falling within Title VI of the EU Treaty entitled ‘Provisions on police and judicial cooperation in criminal matters’ (JHA).

4Under Article 1(1) of Common Position 2001/931, it applies to ‘persons, groups and entities involved in terrorist acts and listed in the Annex’. Article 1(2) and Article 1(3) define respectively what is meant by ‘persons, groups and entities involved in terrorist acts’ and ‘terrorist act’. The applicant’s name is not listed in the annex.

5Under Article 1(6) of Common Position 2001/931, ‘[t]he names of persons and entities on the list in the Annex shall be reviewed at regular intervals and at least once every six months to ensure that there are grounds for keeping them on the list’.

6Under Article 2 of Common Position 2001/931, ‘[t]he European Community, acting within the limits of the powers conferred on it by the [EC] Treaty ..., shall order the freezing of the funds and other financial assets or economic resources of persons, groups and entities listed in the Annex’.

7On 27 December 2001, considering that a regulation was necessary in order to implement at Community level the measures described in Common Position 2001/931, the Council adopted, on the basis of Articles 60 EC, 301 EC and 308 EC, Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L344, p. 70; ‘the contested regulation’).

8The contested regulation provides, in particular, in Article 2(1) for all funds, other financial assets and economic resources of the persons, groups and entities included in the list referred to in Article 2(3) to be frozen.

9Under Article 2(3) of the contested regulation, the Council, acting by unanimity, is to establish, review and amend the list of persons, groups and entities to which that regulation applies, in accordance with the provisions laid down in Article 1(4) to (6) of Common Position 2001/931.

10The original list of the persons, groups and entities to which the contested regulation applies was established by Council Decision 2001/927/EC of 27 December 2001 (OJ 2001 L 344, p. 83). The name of the applicant does not appear on that list.

11On 12 December 2002, the Council adopted, under Articles 15 EU and 34 EU, Common Position 2002/976/CFSP updating Common Position 2001/931 and repealing Common Position 2002/847/CFSP (OJ 2002 L337, p.93).

12The annex to Common Position 2002/976 updates the list of persons, groups and entities to which Common Position 2001/931 applies. Part 1, entitled ‘Persons’, contains inter alia the name of the applicant, identified as follows:

‘46. SELMANI, Abdelghani (a.k.a. Gano) born 14.6.1974 in Algiers (Algeria) (Member of al-Takfir and al-Hijra).’

13By Decision 2002/974/EC of 12 December 2002 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2002/848/EC (OJ 2002 L 337, p. 85), the Council adopted an updated list of persons, groups and entities to which that regulation applies. The applicant’s name is included in that list in the same terms as those used in the annex to Common Position 2002/976.

14Since then, the Council has adopted various common positions and decisions updating the lists respectively provided for by Common Position 2001/931 and by the contested regulation: Council Common Position 2003/402/CFSP of 5 June 2003 updating Common Position 2001/931 and repealing Common Position 2002/976 (OJ 2003 L 139, p. 35); Council Common Position 2003/482/CFSP of 27 June 2003 updating Common Position 2001/931 and repealing Common Position 2003/402 (OJ 2003 L 160, p. 100), and Council Decision 2003/480/EC of 27 June 2003 implementing Article 2(3) of the contested regulation and repealing Decision 2002/974 (OJ 2003 L 160, p. 81); Council Common Position 2003/651/CFSP of 12 September 2003 updating Common Position 2001/931 and repealing Common Position 2003/482 (OJ 2003 L 229, p. 42), and Council Decision 2003/646/EC of 12 September 2003 implementing Article 2(3) of the contested regulation and repealing Decision 2003/480 (OJ 2003 L 229, p. 22); Council Common Position 2003/906/CFSP of 22 December 2003 updating Common Position 2001/931 and repealing Common Position 2003/651 (OJ 2003 L 340, p. 77), and Council Decision 2003/902/EC of 22 December 2003 implementing Article 2(3) of the contested regulation and repealing Decision 2003/646 (OJ 2003 L 340, p. 63); Council Common Position 2004/309/CFSP of 2 April 2004 updating Common Position 2001/931 and repealing Common Position 2003/906 (OJ 2004 L 99, p. 61), and Council Decision 2004/306/EC of 2 April 2004 implementing Article 2(3) of the contested regulation and repealing Decision 2003/902 (OJ 2004 L 99, p. 28); Council Common Position 2004/500/CFSP of 17 May 2004 updating Common Position 2001/931 and repealing Common Position 2004/309 (OJ 2004 L 196, p. 12); Council Common Position 2005/220/CFSP of 14 March 2005 updating Common Position 2001/931 and repealing Common Position 2004/500 (OJ 2005 L 69, p. 59), and Council Decision 2005/221/CFSP of 14 March 2005 implementing Article 2(3) of the contested regulation and repealing Decision 2004/306 (OJ 2005 L 69, p. 64); Council Common Position 2005/427/CFSP of 6 June 2005 updating Common Position 2001/931 and repealing Common Position 2005/220 (OJ 2005 L 144, p. 54) and Council Decision 2005/428/CFSP of 6 June 2005 implementing Article 2(3) of the contested regulation and repealing Decision 2005/221 (OJ 2005 L 144, p. 59), and lastly Council Common Position 2005/725/CFSP of 17 October 2005 updating Common Position 2001/931 and repealing Common Position 2005/427 (OJ 2005 L 272, p. 28), and Council Decision 2005/722/EC of 17 October 2005 implementing Article 2(3) of the contested regulation and repealing Decision 2005/428 (OJ 2005 L 272, p. 15). The applicant’s name has remained on the lists throughout.

15The applicant, who claims to have very little English, states that his bank account with the Irish Nationwide Building Society was frozen pursuant to the measures cited above. It is clear from the file that, by fax of 27 April 2004, that bank sent him an extract of the lists laid down by Common Position 2001/931 and by the contested regulation. It is also clear from the file that, by letter of 30 April 2004, which the applicant claims to have received on 4 May 2004, the Social Welfare Local Office upon which he is dependent advised him of its decision to suspend the payment of unemployment benefit to him, adopted upon instructions from the Department of Foreign Affairs pursuant to Common Position 2001/931 and Article 2 of the contested regulation. Since then, the applicant claims to have been without income or means of support.

Procedure and forms of order sought

16By application lodged at the Registry of the Court of First Instance on 7 July 2004, the applicant brought the present action against the Council and the Commission.

17In his application the applicant claims that the Court should:

–annul Article 2 of the contested regulation in so far as it applies to him;

–annul Article 1 of Decision 2004/306 in so far as it applies to him;

–annul all Council decisions adopted on the basis of the contested regulation having the same effect as Decision 2004/306 in so far as they apply to him;

–if necessary, annul Article 2 of Common Position 2001/931 in so far as it applies to him;

–if necessary, annul Article 1 of Common Position 2004/500 in so far as it applies to him;

–if necessary, annul all Council common positions adopted on the basis of Common Position 2001/931 and having the same effect as Common Position 2004/500 in so far as they apply to him;

–in the alternative, declare the measures in question inapplicable to the applicant.

18By separate document lodged at the Registry of the Court of First Instance on 23 December 2004, the Council raised a plea of inadmissibility under Article 114 of the Rules of Procedure of the Court of First Instance.

19The Council contends that the Court should:

–dismiss the action as manifestly inadmissible or manifestly unfounded;

–order the applicant to pay the costs.

20By separate document lodged at the Registry of the Court of First Instance on 3 February 2005, the Commission raised a plea of inadmissibility under Article 114 of the Rules of Procedure.

21The Commission contends that the Court should:

–declare that the action is inadmissible in so far as it is directed against it;

–order the applicant to pay the costs.

22The applicant lodged his observations on those two pleas of inadmissibility on 11 April 2005.

Law

23Under Article 114(1) of the Rules of Procedure, if a party so applies, the Court may decide on the inadmissibility without going into the substance of the case. Pursuant to Article 114(3), unless the Court decides otherwise, the remainder of the proceedings is to be oral.

24Under Article 111 of the Rules of Procedure, where it is clear that the Court has no jurisdiction to take cognisance of an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, by reasoned order, and without taking further steps in the proceedings give a decision on the action.

25The Court considers, here, that it has sufficient information from the documents in the file and that there is no need to open the oral procedure.

26It is necessary to address, first of all, the plea of inadmissibility raised by the Commission and then that raised by the Council.

The plea of inadmissibility raised by the Commission

27The Commission submits that the action is manifestly inadmissible in so far as it is directed against it. It points out that the action does not identify any act of the Commission which has produced legal effects and that the action is directed solely against the acts of the Council.

28The applicant has put forward no specific argument in response.

29It must be found in this connection that the form of order sought in the action refers expressly and exclusively to measures adopted by the Council alone, without the exercise of any decision-making power by the Commission.

30It follows that the action is manifestly inadmissible in so far as it is directed against the Commission (see, to that effect, orders of the Court of Justice of 8 May 1985 in Case 256/84 Koyo Seiko v Counciland Commission [1985] ECR 1351, and of 11 March 1987 in Case 129/86 Greece v Counciland Commission [1987] ECR 1189; orders of the Court of First Instance of 21 March 2002 in Case T‑249/01 BoixaderRivas v Parliament, not published in the ECR, and of 3 February 2003 in Case T-253/02 Ayadi v Council, not published in the ECR).

The plea of inadmissibility raised by the Council

Arguments of the parties

31The Council submits that the action is manifestly inadmissible in so far as it is directed against the contested regulation and decisions, and manifestly inadmissible or unfounded in so far as it is directed against the contested common positions.

32First of all, as regards the contested Community measures, the Council submits, first, that the action is out of time in so far as it seeks annulment of Decision 2004/306.

33Even if the action were not out of time in so far as it seeks the annulment of Decision 2004/306, it would in any event be inadmissible since the applicant has not brought an action against Decision 2002/974 which, for the first time, included his name in the contested list. Decision 2004/306, adopted almost a year and a half later, merely updated that list.

34Second, the action is also out of time and in any event redundant in so far as it seeks annulment of ‘all Council decisions adopted on the basis of [the contested] regulation’, prior to the adoption of Decision 2004/306. Those decisions were successively repealed one after the other and the applicant is therefore no longer entitled to seek their annulment.

35Third, the action is similarly out of time in so far as it seeks partial annulment of the contested regulation, since that was published in the Official Journal of the European Communities on 28 December 2001.

36Fourth and lastly, the action is manifestly inadmissible in so far as it seeks in the alternative to obtain a declaration of inapplicability of the contested regulation and decisions, since the primary application for annulment is itself inadmissible. Moreover, the possibility of raising such a plea of illegality is in principle limited to regulations.

37Next, as regards the contested measures adopted by the Union, the Council submits, first, that the action is for the most part manifestly inadmissible and for the rest manifestly unfounded in so far as it is directed, by way of action or plea of inadmissibility, against Common Position 2001/931.

38The legal basis for that common position is Article 15 EU and the Court of First Instance has no jurisdiction to interpret that provision. The Council cites to that effect the Opinion of Advocate General Fennelly in Case C-170/96 Commission v Council [1998] ECR I-2763, I-2765, point 11. Moreover, Article 46 EU does not confer jurisdiction on the Community Courts to review the legality of a measure adopted under a provision of Title V of the EU Treaty.

39The Council also cites the orders of the Court of First Instance of 7 June 2004 in Case T-338/02 Segi and Others v Council [2004] ECR II-0000, paragraph 40 et seq., under appeal and in Case T-333/02 Gestoras Pro Amnistía and Others v Council, not published in the ECR, paragraph 40 et seq., under appeal. In those two orders the Court of First Instance held that it manifestly lacked the jurisdiction to examine actions for damages founded on the alleged illegality of Article 4 of Common Position 2001/931, adopted on the basis of Article 34 EU. The sole area of jurisdiction retained by the Court of First Instance, pursuant to the case-law of the Court of Justice, is to ascertain whether the provision in question encroached upon the powers conferred on the Community. Following that review, the Court concluded that the Council had fully respected the Community’s powers by adopting the provision in question and that the action was therefore manifestly unfounded.

40The Council considers that the reasoning followed by the Court in those two orders is applicable by analogy in the present case. Article 2 of Common Position 2001/931 is unquestionably a measure adopted in the context of the CFSP in order to implement Security Council Resolution 1373 (2001). That measure was adopted in full compliance with the Community’s powers under Articles 301 EC and 60 EC, subsequently exercised by the adoption of the contested regulation.

41The Council submits, second, that the same reasoning applies in relation to Common Position 2004/500 which merely updates the list in question.

42The Council considers, third, that the common positions adopted prior to Common Position 2004/500 were repealed by that common position and that the action is therefore devoid of purpose in their regard.

43In its observations on the plea of inadmissibility, lodged on 11 April 2005, the applicant points out that Decision 2004/306 was repealed and replaced by Decision 2005/221.

44Consequently, the applicant states that he no longer seeks the annulment of Decision 2004/306, but that of Decision 2005/221 and of any future Council decision which succeeds it prior to the date of judgment in the present case. Since Decision 2005/221 was published in the Official Journal of 16 March 2005, the application to annul it was brought within the time-limit of two months laid down by Article 230 EC. The applicant points out that the form of order he seeks is ‘the annulment of such Council decision as is in force at the date of the hearing of the application herein by the [Court of First Instance], whether it be Decision 2004/306 … or any successor thereto that repeals Decision 2004/306, or subsequent Council Decision [which] includes the applicant’s name in the annex thereto’ and that the application itself refers throughout to ‘Decision [2004/306] (or any like measure)’. Decision 2005/221 constitutes just such a measure.

45In the event that the present action for annulment is deemed inadmissible because it was instituted out of time, the applicant adds that it is open to him to institute a similar action against Decision 2005/221 or any decision which might succeed it, provided that he does so within two months of its publication. It follows in his view that the plea raised by the Council that the action is out of time is ‘academic and futile’.

46Furthermore, the argument of the Council summarised at paragraph 33 above has no basis in law and is unsupported by authority in the light of Article 230 EC. Decision 2004/306 and the subsequent decisions repealed Decision 2002/974 and its successors by supplementing the list in question. Each of those decisions constitutes a new act of the Council and sets time running afresh for the purposes of bringing an action.

47As regards the contested regulation, the applicant states that he seeks its annulment only in so far as it became applicable to him, by reason of the reference to him by Decisions 2004/306 and 2005/221. The operative part of that regulation, in so far as it applies to the applicant, was renewed each time that a new decision of the Council was adopted based on it. Similarly, a fresh time-limit for bringing an action against that regulation was set on each of those occasions. According to the applicant, any other interpretation would necessarily entail the absurd consequence that he was required to bring an action against the contested regulation even before his name was included on the list in question and, consequently, before he could have known that that regulation applied to him.

48As for the acts of the Union, the applicant submits that the Court of First Instance is competent to review the legality of Common Position 2001/931 and the succeeding common positions because these are ‘acts of the Council … intended to produce legal effects vis-à-vis third parties’ within the meaning of the first paragraph of Article 230 EC, but also decisions addressed to the applicant or of direct and individual concern to him within the meaning of the fourth paragraph of Article 230 EC.

49The applicant considers that there is nothing in the judgment or the Opinion of Advocate General Fennelly in Commission v Council, paragraph 38 above, to contradict that argument. In point 11 of that Opinion the Advocate General stated that the Court may interpret acts purporting to be adopted under Title VI of the EU Treaty in order to determine whether or not they deal with matters which more properly fall within the Community sphere of competence as determined by Article M of the EU Treaty (now Article 47 EU). In the present case, Article 34 EU, which is one of the legal bases of the contested common positions, falls within Title VI.

50Moreover, the orders in Segi and Others v Council and Gestoras Pro Amnistía and Others v Council, paragraph 39 above, are irrelevant to the present case because they concern the interpretation of Article 4 of Common Position 2001/931, which the applicant does not dispute comes within the scope of Article 34 EU, and not of Article 2 of that common position.

51There is, however, a significant difference between the scope and the effects of Articles 2 and 4 of Common Position 2001/931. Whereas Article 4 essentially calls for police and judicial cooperation between Member States in criminal matters and for the exploitation of their existing powers in accordance with the acts of the European Union and other international agreements binding on Member States, Article 2 seeks to impose severe restrictions on the persons, groups and entities covered. Moreover, although Article 2 states that the Community may only adopt those measures ‘acting within the limits of the powers conferred on it by the [EC] Treaty’, no provision of that Treaty confers such a power on the Community. The applicant refers in this regard to the argument put forward in his application, that the Council was not competent to adopt the contested regulation and decisions on the basis of Articles 60 EC, 301 EC and 308 EC. Consequently, Article 2 of Common Position 2001/931 seeks to introduce powers which exceed those enjoyed by the Community and that provision does not fall within the scope of Article 15 EU or 34 EU.

Findings of the Court

52First, as regards the admissibility of the action in so far as it is directed against Common Position 2001/931, it should be noted at the outset that that measure is not an act of the Council adopted under the EC Treaty and as such subject to the review of legality under Article 230 EC, but an act of the Council adopted on the basis of Article 15 EU, falling within Title V of the EU Treaty relating to the CFSP, and Article 34 EU relating to JHA.

53The applicant seeks more specifically, the annulment and, if necessary, a declaration of inapplicability of Article 2 of that common position. As is apparent both from Article 1 and recitals 2, 4 and 5 of Common Position 2001/931, that provision seeks to implement paragraph 1(c) of Security Council Resolution 1373 (2001) by providing that the Community, acting within the limits of the powers conferred on it by the EC Treaty, is to order the freezing of the funds and other financial assets or economic resources of persons, groups and entities involved in terrorist acts and listed in the annex. That provision consequently falls within Title V of the EU Treaty relating to the CFSP and its sole legal basis is Article 15 EU.

54It must be stated that no provision is made for any legal remedy before the Community Courts in connection with Title V of the EU Treaty on the CFSP.

55Under the EU Treaty, in the version arising from the Treaty of Amsterdam, the powers of the Court of Justice are exhaustively listed in Article 46 EU. That article makes no provision for any jurisdiction of the Court in respect of the provisions of Title V of the EU Treaty.

56In those circumstances, the Court of First Instance has jurisdiction to hear an action for annulment directed against a CFSP common position only strictly to the extent that in support of such an action the applicant alleges an infringement of the Community’s powers. The Community Courts have jurisdiction to examine the content of an act adopted under the EU Treaty in order to determine whether that act affects the Community’s powers and to annul it if it appears that it should have been based on a provision of the EC Treaty (see, to that effect, Commission v Council, paragraph 38 above, paragraph 17; see also, by analogy, Case C-124/95 Centro-Com [1997] ECR I-81, paragraph 25, and the orders in Segi and Others v Council and GestorasPro Amnistía and Others v Council, paragraph 39 above, paragraph 41).

57In the present case, however, the applicant does not in any way seek to demonstrate that the Council encroached on the Community’s powers in adopting Article 2 of Common Position 2001/931. On the contrary, he submits that by means of that provision the Council unduly sought to extend the Community’s competences beyond those exhaustively laid down by the EC Treaty and, more specifically, by Articles 60 EC, 301 EC and 308 EC (see paragraph 51 above).

58It follows from the foregoing that the Court of First Instance manifestly has no jurisdiction to hear the present action in so far as it is directed against Article 2 of Common Position 2001/931, it being agreed that the question whether the Community acts adopted in order to implement the measures laid down by Article 2 exceed the powers conferred on the Community by the EC Treaty may be examined in the context of an action under Article 230 EC validly directed against those acts.

59The same conclusion must be reached, for the same reasons, in so far as the action is directed against Article 1 of Common Position 2004/500 and against ‘all Council common positions adopted on the basis of Common Position 2001/931 and having the same effect as Common Position 2004/500’.

60Second, as regards the admissibility of the action in so far as it seeks the annulment of Decision 2004/306, even if it has not become devoid of purpose because of the adoption of Decision 2005/221, it must be found that when that action was instituted the time within which the applicant could have sought the annulment of that act had expired.

61Since Decision 2004/306 was published in the Official Journal of 3 April 2004, the time-limit of two months for instituting proceedings laid down by the fifth paragraph of Article 230 EC, extended on account of distance by 10 days pursuant to Article 102(2) of the Rules of Procedure, runs from 18 April 2004, pursuant to Article 102(1) of those rules, which provides that, where the period of time allowed for commencing proceedings against a measure adopted by an institution runs from the publication of that measure, that period is to be calculated from the end of the 14th day after publication thereof in the Official Journal. That period therefore expired on 28 June 2004 at midnight. However, it was not until 7 July 2004 that a copy of the signed original of the application arrived at the Court Registry by fax and moreover the original of that document was lodged at the Registry on 19 July 2004, that is after the expiry of the period of 10 days laid down by Article 43(6) of the Rules of Procedure.

62Furthermore, the applicant has not established or even argued the existence of unforeseeable circumstances or of force majeure which would allow the Court to waive the time-limit in question on the basis of the second paragraph of Article 45 of the Statute of the Court of Justice (order of the Court of Justice of 17 May 2002 in Case C-406/01 Germany v Parliament and Council [2002] ECR I-4561, paragraph 22).

63The same conclusion must be reached, a fortiori, in so far as the action seeks the annulment of the Council decisions adopted on the basis of the contested regulation, prior to the adoption of Decision 2004/306.

64Third, as regards the admissibility of the action in so far as it seeks the annulment of Article 2 of the contested regulation, even if the applicant may be regarded as directly and individually concerned by that measure, by reason of his inclusion in the list appended to that act, pursuant to Decision 2004/306, it must similarly be found that he was out of time to apply for annulment of that measure when the present proceedings were commenced. In that case, the time-limit for bringing an action against that regulation is to be calculated in the same way as that for bringing an action against that decision.

65It follows from the foregoing that when the present action was initiated, the applicant was not entitled to seek annulment of any of the existing Community acts covered by that action.

66Fourth, as regards the admissibility of the action in so far as it seeks the annulment of ‘all Council decisions adopted on the basis of the contested regulation having the same effect as Decision 2004/306’ , the applicant stated in his observations on the pleas of inadmissibility that he was thenceforth seeking annulment of Decision 2005/221 and, more generally, ‘the annulment of such Council decision as is in force at the date of the hearing of the application [by the Court of First Instance], whether it be … Decision 2004/306 or any successor thereto that repeals [it] or subsequent Council decision [which] includes the applicant’s name in the annex thereto’.

67Indeed it must be found that since the present proceedings were commenced Decision 2004/306 has been repealed and replaced by Decision 2005/221, which was itself repealed and replaced by Decision 2005/722.

68In this regard, it is true that, where, in the course of proceedings, a decision is replaced by a decision having the same subject-matter, that must be regarded as a new factor which allows the applicant to amend its heads of claim and pleas in law. It would not be in the interests of the due administration of justice and the requirements of procedural economy to oblige the applicant to make a fresh application (Case 14/81 Alpha Steel v Commission [1982] ECR 749, paragraph 8; Joined Cases 351/85 and 360/85 Fabrique de fer de Charleroi and Dillinger Hüttenwerke v Commission [1987] ECR 3639, paragraph 11; Case 103/85 Stahlwerke Peine-Salzgitter v Commission [1988] ECR 4131, paragraphs 11 and 12; Case C-217/01 P Hendrickx v Cedefop [2003] ECR I-3701, paragraph 29; and Joined Cases T-46/98 and T-151/98 CCRE v Commission [2000] ECR II-167, paragraph 33).

69However, according to settled case-law, the admissibility of an action must be judged by reference to the situation prevailing when the application is lodged (Case 50/84 Bensider and Others v Commission [1984] ECR 3991, paragraph 8; order of the President of the Court of First Instance of 8 October 2001 in Case T‑236/00 R II Stauner and Others v Parliament and Commission [2001] ECR II‑2943, paragraph 49, and order of the Court of First Instance of 9 July 2003 in Case T-219/01 Commerzbank v Commission [2003] ECR II-2843, paragraph 61).

70It follows that an applicant may only amend his pleadings in response to supervening events in the course of proceedings if his application for annulment of the act originally contested was itself admissible when that application was lodged (order of the Court of First Instance of 15 February 2005 in Case T-229/02 PKK and KNK v Council [2005] ECR II-0000, paragraph 30; see also, by analogy, order of the Court of First Instance of 20 June 2005 in Case T-361/02 Deutsche Bahn v Commission [2005] ECR II-0000, paragraph 24).

71Similarly, forms of order sought in an application worded, as in the present case, so as to seek annulment of an act then in force and all acts having the same subject-matter which may replace that act in the course of proceedings must be rejected as inadmissible in their entirety if the action against the initial act was not itself admissible when it was commenced.

72In the present case, it has already been held that when the present action was instituted the applicant was not entitled to seek annulment of any of the Community acts then in force referred to by that action.

73It follows that the claims of the applicant for the annulment of ‘all Council decisions adopted on the basis of the contested regulation having the same effect as Decision 2004/306’, as stated in paragraph 66 above, are also inadmissible and there is no basis for granting the applicant the opportunity to amend his pleadings in the light of the adoption of Decisions 2005/221 and 2005/722.

74It will be incumbent upon the applicant, if appropriate, to commence new proceedings within two months of the publication of any new Council decision implementing Article 2(3) of the contested regulation. The Court notes in that connection that, under Article 1(6) of Common Position 2001/931, the names of the persons and entities included in the list annexed to that common position are reassessed at regular intervals, at least once every six months, to ensure that their inclusion in the list remains justified, and that Article 2(3) of the contested regulation makes that provision applicable to the list annexed to that regulation.

75Contrary to the applicant’s submission, the plea that the present action is time-barred is not ‘academic and futile’. According to settled case-law, the time-limits for initiating proceedings are a matter of public policy and are not subject to the discretion of either the Court or the parties, since they were established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice (Joined Cases 193/87 and 194/87 Maurissen and Others v Court of Auditors [1989] ECR I-1045, paragraph 39; Joined Cases T-190/95 and T-45/96 Sodima v Commission [1999] ECR II-3617, paragraph 25; and order of the Court of First Instance of 29 September 1999 in Joined Cases T-148/98 and T-162/98 Evans and Others v Commission [1999] ECR II-2837, paragraph 29).

76Fifth, as regards the admissibility of the action in so far as it seeks, in the alternative, a declaration that the contested measures are inapplicable to the applicant, it should be noted that according to settled case-law the possibility provided by Article 241 EC of invoking the inapplicability of a regulation does not constitute an independent right of action and recourse may be had to it only as an incidental plea (Case 33/80 Albini v Council and Commission [1981] ECR 2141, paragraph 17, and Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council [1985] ECR 2523, paragraph 36; Case T-154/94 CSF and CSME v Commission [1996] ECR II-1377, paragraph 16, and order of the Court of First Instance of 19 September 2001 in Joined Cases T‑54/00 and T-73/00 Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council [2001] ECR II-2691, paragraph 82).

77In the absence of an admissible primary action, the applicant may not therefore invoke Article 241 EC and the alternative head of claim seeking a declaration of inapplicability of the contested measures is manifestly inadmissible.

78It follows from the entirety of the foregoing that the present action is manifestly inadmissible.

Costs

79Under Article 87(2) 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 applicant has been unsuccessful and the defendant institutions have applied for costs, he must be ordered to pay the costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Second Chamber)

hereby orders:

1.The action is dismissed as manifestly inadmissible.

2.The applicant shall pay the costs.

Luxembourg, 18 November 2005

* Language of the case: English.