Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

14 December 2022 (*)

(Common foreign and security policy – Restrictive measures imposed on the PKK with a view to combating terrorism – Freezing of funds – Common Position 2001/931/CFSP – Regulation (EC) No 2580/2001 – Applicability to situations of armed conflict – Terrorist group – Factual basis of the decisions to freeze funds – Decision taken by a competent authority – Authority of a third State – Review – Obligation to state reasons – Proportionality – Rights of the defence – Right to effective judicial protection)

In Case T‑182/21,

Kurdistan Workers’ Party (PKK), represented by A. van Eik and T. Buruma, lawyers,

applicant,

v

Council of the European Union, represented by B. Driessen and S. Van Overmeire, acting as Agents,

defendant,

THE GENERAL COURT (Fourth Chamber),

composed, at the time of the deliberations, of S. Gervasoni (Rapporteur), President, L. Madise and P. Nihoul, Judges,

Registrar: I. Kurme, Administrator,

having regard to the written part of the procedure, in particular the modifications of 16 September 2021 and 1 April 2022 to the form of order sought in the application,

further to the hearing on 22 June 2022,

gives the following

Judgment

1        By its action under Article 263 TFEU, the applicant, the Kurdistan Workers’ Party (PKK), seeks annulment of:

–        Council Decision (CFSP) 2021/142 of 5 February 2021 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision (CFSP) 2020/1132 (OJ 2021 L 43, p. 14);

–        Council Implementing Regulation (EU) 2021/138 of 5 February 2021 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation (EU) 2020/1128 (OJ 2021 L 43, p. 1);

–        Council Decision (CFSP) 2021/1192 of 19 July 2021 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2021/142 (OJ 2021 L 258, p. 42);

–        Council Implementing Regulation (EU) 2021/1188 of 19 July 2021 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation 2021/138 (OJ 2021 L 258, p. 14);

–        Council Decision (CFSP) 2022/152 of 3 February 2022 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2021/1192 (OJ 2022 L 25, p. 13);

–        Council Implementing Regulation (EU) 2022/147 of 3 February 2022 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation 2021/1188 (OJ 2022 L 25, p. 1), in so far as those measures concern the applicant.

I.      Background to the dispute and developments in the course of the proceedings

2        The applicant was founded in 1978 and entered into an armed struggle against the Turkish Government in order to obtain recognition for the right of the Kurds to self-determination.

3        On 28 September 2001, the United Nations Security Council adopted resolution 1373 (2001) setting out wide-ranging strategies to combat terrorism and, in particular, the funding thereof.

4        On 27 December 2001, the Council of the European Union considered that action by the European Union was necessary in order to implement resolution 1373 (2001) of the United Nations Security Council and adopted Common Position 2001/931/CFSP on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93). In particular, Article 2 of Common Position 2001/931 prescribes the freezing of funds and other financial assets or economic resources of persons, groups and entities involved in terrorist acts and listed in the annex to that common position.

5        Also on 27 December 2001, in order to implement at EU level the measures set out in Common Position 2001/931, the Council adopted Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70) and Decision 2001/927/EC establishing the list provided for in Article 2(3) of Regulation No 2580/2001 (OJ 2001 L 344, p. 83). The applicant was not named on that initial list.

6        On 2 May 2002, the Council adopted Common Position 2002/340/CFSP updating Common Position 2001/931 (OJ 2002 L 116, p. 75). The Annex to Common Position 2002/340 updated the list of persons, groups and entities subject to the restrictive measures laid down by Common Position 2001/931 and, in particular, inserted the name of the applicant, identified as follows: ‘Kurdistan Workers’ Party (PKK)’.

7        Also on 2 May 2002, the Council adopted Decision 2002/334/EC implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2001/927 (OJ 2002 L 116, p. 33). That decision named the applicant on the list provided for in Article 2(3) of Regulation No 2580/2001, in the same terms as those used in the Annex to Common Position 2002/340.

8        Those instruments have since been regularly updated in accordance with Article 1(6) of Common Position 2001/931 and Article 2(3) of Regulation No 2580/2001. The applicant’s name has always been retained on the lists of groups and entities to which the restrictive measures covered by the aforementioned measures (‘the lists at issue’) apply, despite the challenge brought before the Court and the annulment, by the latter, of several of the decisions and regulations to which those lists are annexed. Since 2 April 2004, the entity named on the lists at issue is the ‘Kurdistan Workers’ Party (PKK) (a.k.a. “KADEK”, a.k.a. “KONGRA-GEL”)’.

9        In particular, the Council adopted Decision 2021/142 and Implementing Regulation 2021/138 (‘the first set of contested measures’). The statements of reasons accompanying those measures, like those communicated with the previous measures relating to retention on the lists at issue and previously examined by the Court, were based:

–        as regards the decisions of the United Kingdom authorities, on:

–        an order of the Home Secretary of the United Kingdom (‘the Home Secretary’) dated 29 March 2001 proscribing the PKK under the UK Terrorism Act 2000, as supplemented by an order of 14 July 2006, stating that ‘KADEK’ and ‘KONGRA-GEL’ were other names for the PKK,

–        a decision of the Home Secretary dated 3 December 2014 upholding the proscription of the PKK,

–        an order of the Home Secretary from 2020 stating that ‘TAK’ should not be proscribed separately but should be included in the proscription of the PKK;

–        as regards the decisions of the French authorities, on a judgment of 2 November 2011 of the tribunal de grande instance de Paris (Regional Court, Paris, France), whereby the centre culturel kurde Ahmet Kaya (Ahmet Kaya Kurdish Cultural Centre) was convicted of participation in a criminal association in order to prepare an act of terrorism and of financing a terrorist undertaking, that judgment being upheld on appeal by a judgment of 23 April 2013 of the cour d’appel de Paris (Court of Appeal, Paris, France) and, on further appeal, by a judgment of 21 May 2014 of the Cour de cassation (Court of Cassation, France);

–        as regards the decisions of the United States authorities, on:

–        a decision of the Government of the United States of America of 8 October 1997 designating the PKK as a ‘Foreign Terrorist Organisation’ under Section 219 of the US Immigration and Nationality Act, confirmed on 5 February 2019,

–        and on a decision of the United States Government of 31 October 2001 designating the PKK as a ‘Specially Designated Global Terrorist’ under Executive Order No 13224.

10      By Decision 2021/1192 and Implementing Regulation 2021/1188 (‘the second set of contested measures’), adopted on 19 July 2021, after the present action was brought, the applicant’s name was retained on the lists at issue. The statements of reasons accompanying the second set of contested measures stated, in addition to the previous grounds, that the Council had examined further the incident of 24 August 2014, previously mentioned as having formed the basis for the decision of the Home Secretary adopted in 2014 consisting in the attack on a thermal energy plant and the kidnapping of three Chinese engineers, and had concluded that that incident was attributable to the PKK and could be classified as a terrorist act within the meaning of Article 1(3) of Common Position 2001/931.

11      By Decision 2022/152 and Implementing Regulation 2022/147 (‘the third set of contested measures’), adopted on 3 February 2022, the applicant’s name was again maintained on the lists at issue. The relevant statements of reasons refer, in addition to the previous reasons, to the attack on a Turkish military outpost in Iraq by an armed drone belonging to the PKK on 20 August 2020, which the Council regarded as a terrorist act demonstrating the ongoing risk of the PKK’s terrorist involvement.

II.    Forms of order sought

12      The applicant claims that the Court should:

–        annul the first, second and third sets of contested measures (together, ‘the contested measures’);

–        order the Council to pay the costs.

13      The Council, after withdrawing at the hearing only the plea of inadmissibility raised against the present action concerning the authorisation of the two signatories to the powers of attorney issued to the lawyers who signed the applicant’s written pleadings to represent the latter, formal note of which was taken in the minutes of the hearing, contends that the Court should:

–        dismiss the action as unfounded;

–        order the applicant to pay the costs.

III. Law

14      The applicant relies on seven pleas in law in support of its action: (i) infringement of the principle of legal certainty and of Article 1(2) of Common Position 2001/931 or of Article 2(3) of Regulation No 2580/2001, on account of the failure to identify with sufficient precision the ‘PKK’ as designated; (ii) incorrect classification of the applicant as a terrorist group within the meaning of Article 1(3) of Common Position 2001/931; (iii) absence of a decision taken by a competent authority within the meaning of Article 1(4) of Common Position 2001/931; (iv) absence of a review in accordance with the requirements of Article 1(6) of Common Position 2001/931; (v) infringement of the principles of proportionality and subsidiarity; (vi) failure to comply with the obligation to state reasons; and (vii) infringement of the rights of the defence and the right to effective judicial protection.

15      Those pleas mainly allege infringement of Article 1 of Common Position 2001/931, paragraphs 2, 3, 4 and 6 of which provide:

‘2. For the purposes of this Common Position, “persons, groups and entities involved in terrorist acts” shall mean:

–        persons who commit, or attempt to commit, terrorist acts or who participate in, or facilitate, the commission of terrorist acts,

–        groups and entities owned or controlled directly or indirectly by such persons; and persons, groups and entities acting on behalf of, or under the direction of, such persons, groups and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons, groups and entities.

3. For the purposes of this Common Position, “terrorist act” shall mean one of the following intentional acts, which, given its nature or its context, may seriously damage a country or an international organisation, as defined as an offence under national law, where committed with the aim of:

(i)      seriously intimidating a population, or

(ii)      unduly compelling a Government or an international organisation to perform or abstain from performing any act, or

(iii)      seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation:

(a)      attacks upon a person's life which may cause death;

(b)      attacks upon the physical integrity of a person;

(c)      kidnapping or hostage taking;

(d)      causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss;

(e)      seizure of aircraft, ships or other means of public or goods transport;

(f)      manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of, biological and chemical weapons;

(g)      release of dangerous substances, or causing fires, explosions or floods, the effect of which is to endanger human life;

(h)      interfering with or disrupting the supply of water, power or any other fundamental natural resource, the effect of which is to endanger human life;

(i)      threatening to commit any of the acts listed under (a) to (h);

(j)      directing a terrorist group;

(k)      participating in the activities of a terrorist group, including by supplying information or material resources, or by funding its activities in any way, with knowledge of the fact that such participation will contribute to the criminal activities of the group.

For the purposes of this paragraph, “terrorist group” shall mean a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist acts. “Structured group” means a group that is not randomly formed for the immediate commission of a terrorist act and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure.

4. The list in the Annex shall be drawn up on the basis of precise information or material in the relevant file which indicates that a decision has been taken by a competent authority in respect of the persons, groups and entities concerned, irrespective of whether it concerns the instigation of investigations or prosecution for a terrorist act, an attempt to perpetrate, participate in or facilitate such an act based on serious and credible evidence or clues, or condemnation for such deeds. Persons, groups and entities identified by the Security Council of the United Nations as being related to terrorism and against whom it has ordered sanctions may be included in the list.

For the purposes of this paragraph “competent authority” shall mean a judicial authority, or, where judicial authorities have no competence in the area covered by this paragraph, an equivalent competent authority in that area.

…

6. The 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.’

16      It is clear from the case-law interpreting those provisions of Common Position 2001/931 that the procedure which may culminate in a measure to freeze funds under that common position takes place at two levels, one national, the other European (see, to that effect, judgments of 14 March 2017, A and Others, C‑158/14, EU:C:2017:202, paragraph 84, and of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraphs 203 and 204). In the first phase, a competent national authority must take in respect of the party concerned a decision complying with the definition in Article 1(4) of Common Position 2001/931. In the second phase, the Council, acting by unanimity, must decide to include the party concerned on the list relating to the freezing of funds, on the basis of precise information or material in the relevant file which indicates that such a decision has been taken (judgments of 12 December 2006, Organisation des Modjahedines du peuple d’Iran v Council, T‑228/02, EU:T:2006:384, paragraph 117, and of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraph 131).

17      In the absence of means on the part of the European Union to carry out its own investigations regarding the involvement of a given person in terrorist acts, the requirement for a prior decision of a national authority aims to establish that evidence or serious and credible clues exist of the involvement of the person concerned in terrorist activities, regarded as reliable by the national authorities and having led them, at the very least, to adopt measures of inquiry. It thus follows from the reference to a national decision, ‘precise information’ and ‘serious and credible evidence or clues’ in Article 1(4) of Common Position 2001/931 that the latter aims to protect the persons concerned by ensuring that they are included on the list relating to the freezing of funds on a sufficiently solid factual basis, and that the common position seeks to attain that objective by requiring a decision taken by a national authority (judgments of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraphs 68 and 69, and of 26 July 2017, Council v Hamas, C‑79/15 P, EU:C:2017:584, paragraph 24).

18      That form of specific cooperation between the Council and the Member States in the fight against terrorism, established by Common Position 2001/931 gives rise to a number of consequences.

19      It follows, first, that, in accordance with Article 1(4) of Common Position 2001/931, the initial entry of a person or entity on the list relating to the freezing of funds presupposes the existence of a national decision by a competent authority. However, such a condition is not laid down in Article 1(6) of that common position, relating to the review of that entry.

20      It follows, second, that it is for the Council to prove that the freezing of the funds of a person, group or entity is legally justified, which burden of proof has a relatively limited purpose in the procedure before the EU institutions. The form of specific cooperation established between the Member States and the Council in relation to the fight against terrorism gives rise, in fact, to an obligation for that institution to defer as far as possible on the assessment conducted by the competent national authority (judgments of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraphs 133 and 134; of 4 December 2008, People’s Mojahedin Organization of Iran v Council, T‑284/08, EU:T:2008:550, paragraph 53; and of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraph 282).

21      The Council’s obligation to defer as far as possible to the assessment conducted by the competent national authority principally concerns national condemnation decisions taken into account at the time of the initial entry under Article 1(4) of Common Position 2001/931. More specifically, it is not for the Council to verify the actual existence or imputation of the facts relied on in the national condemnation decisions which formed the basis of an initial entry. Such an obligation on the part of the Council to verify the facts which gave rise to a national decision forming the basis of an initial entry on the list relating to the freezing of funds would undoubtedly undermine the two-tier system characterising that common position, since the Council’s assessment of the accuracy of those facts might conflict with the assessment conducted and the findings made by the national authority concerned, and such a conflict would be all the more inappropriate because the Council does not necessarily have at its disposal all the facts and evidence that appear in the file of that authority (see, to that effect, judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraphs 240 to 242 and the case-law cited). It must be borne in mind, furthermore, that the guarantee, for the persons concerned, that their inclusion on the list relating to the freezing of funds will be founded on a sufficiently sound factual basis rests precisely on the requirement of a decision taken by a national authority and on the confidence which the EU institutions place in the assessment made by that national authority of the evidence and clues (see paragraph 17 above).

22      By contrast, as regards the material on which the Council relies in order to demonstrate that there is an ongoing risk of involvement in terrorist activities under Article 1(6) of Common Position 2001/931, irrespective of whether that material is derived from a national decision adopted by a competent authority or from other sources, it is for the Council, in the event of challenge, to establish that the facts alleged are well founded and for the Courts of the European Union to determine whether they are made out, which involves assessing the truth of the facts concerned and the classification of those facts as evidence justifying the use of restrictive measures against the person concerned (see, to that effect, judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraphs 52 to 55 and the case-law cited).

23      It follows that a distinction must be made, in respect of each of the contested measures, according to whether they are based on the decisions of the competent national authorities which justified the initial entry of the applicant or whether they are based on subsequent decisions of those national authorities or on material relied on independently by the Council. Such a distinction is all the more necessary since those two types of basis are governed by different provisions of Common Position 2001/931, the former falling under Article 1(4) of that position, the latter under Article 1(6) thereof.

24      In the present case, the first and second sets of contested measures are based solely on decisions of several national authorities, namely those of the United Kingdom, the United States and France. It should be stated that some of the national decisions taken into account formed the basis of the initial entry of the applicant, whereas other decisions adopted subsequently were taken into account by the Council in the context of its review of the entry of the applicant on the lists at issue. By contrast, the third set of contested measures are based both on the decisions of the authorities of the United Kingdom, the United States and France and on an independent examination by the Council of an incident in 2020 described in the statements of reasons.

25      It is therefore necessary to examine the seven pleas directed against the contested measures in the light of those preliminary considerations. There will therefore follow below an examination of whether those measures comply with paragraph 2 (first plea), paragraph 3 (second plea), paragraph 4 (third plea) and paragraph 6 (fourth plea) of Article 1 of Common Position 2001/931, and with the principle of proportionality (fifth plea) – the applicant having stated at the hearing, formal note of which was taken in the minutes of the hearing, that the plea in question was based solely on the infringement of that principle and not also on an infringement of the principle of subsidiarity –, the obligation to state reasons (sixth plea) and, lastly, the rights of the defence and the applicant’s right to effective judicial protection (seventh plea), beginning with the examination of the first plea, followed by the third plea alleging infringement of Article 1(4) of Common Position 2001/931, then the other pleas in law.

A.      The first plea in law: infringement of the principle of legal certainty and of Article 1(2) of Common Position 2001/931 or of Article 2(3) of Regulation No 2580/2001

26      It should be recalled that, under Article 1(2) of Common Position 2001/931, ‘persons, groups and entities involved in terrorist acts’ are ‘persons who commit, or attempt to commit, terrorist acts or who participate in, or facilitate, the commission of terrorist acts’ (first indent) or ‘groups and entities owned or controlled directly or indirectly by such persons; and persons, groups and entities acting on behalf of, or under the direction of, such persons, groups and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons, groups and entities’ (second indent) (see paragraph 15 above).

27      Article 2(3) of Regulation No 2580/2001 provides as follows:

‘The Council, acting by unanimity, shall establish, review and amend the list of persons, groups and entities to which this Regulation applies, in accordance with the provisions laid down in Article 1(4), (5) and (6) of Common Position 2001/931/CFSP; such list shall consist of:

(i)      natural persons committing, or attempting to commit, participating in or facilitating the commission of any act of terrorism;

(ii)      legal persons, groups or entities committing, or attempting to commit, participating in or facilitating the commission of any act of terrorism;

(iii)      legal persons, groups or entities owned or controlled by one or more natural or legal persons, groups or entities referred to in points (i) and (ii); or

(iv)      natural legal persons, groups or entities acting on behalf of or at the direction of one or more natural or legal persons, groups or entities referred to in points (i) and (ii).’

28      The applicant claims that the Council infringed those provisions by failing to identify with sufficient precision the entity or group designated as the ‘PKK’ in the contested measures. In so designating the PKK, the Council did not base its identification on acts committed by persons, contrary to the requirements of Article 1(2) of Common Position 2001/931. Nor did it state clearly whether it considered the PKK to be a ‘group’ or an ‘entity’, or indicate in the contested measures on what basis it intended to keep the PKK on the lists at issue, even though ‘PKK’ refers to a party having the structure of a multi-layered ‘complex’, to the ‘complex’ itself and to the Kurdish social movement. Moreover, according to the applicant, neither the ‘complex’, designating a multitude of parties and other forms of independently organised groupings, nor the Kurdish social movement, the members of which the applicant controls neither directly nor indirectly, can be regarded as a structured association constituting a ‘terrorist group’, or even as an ‘entity’ distinct from those various independent and separate entities. The applicant also criticises the fact that, alongside the reference to the PKK, reference is also made to ‘KONGRA-GEL’, which has never been under PKK control, and to ‘KADEK’, which ceased to exist in 2003. Lastly, the applicant argues that, in the event that the lack of precision of its entry is a consequence of the definitions of ‘group’ and ‘entity’ in Article 1(2) of Common Position 2001/931 and Article 2(3) of Regulation No 2580/2001, those provisions infringe the principle of legal certainty.

29      It should be noted that it is clear from Article 1(2) of Common Position 2001/931 and from Article 2(3) of Regulation No 2580/2001 that four categories of persons may be included on the lists relating to the freezing of funds: natural persons, legal persons, groups and entities. Reference is made, in particular, to natural persons who commit, participate in or facilitate the commission of terrorist acts (Article 1(2), first indent, of Common Position 2001/931 and Article 2(3)(i) of Regulation No 2580/2001), legal persons who commit, participate in or facilitate the commission of terrorist acts (Article 1(2), first indent, of Common Position 2001/931 and Article 2(3)(ii) of Regulation No 2580/2001), but also to groups and entities which commit, participate in or facilitate the commission of terrorist acts.

30      That designation of groups and entities which commit, participate in or facilitate the commission of terrorist acts is, admittedly, clearer in Article 2(3)(ii) of Regulation No 2580/2001, which refers to ‘legal persons, groups or entities committing, or attempting to commit, participating in or facilitating the commission of any act of terrorism’ (see also paragraph 27 above). However, the words ‘groups and entities owned or controlled directly or indirectly by … persons [who commit, participate in or facilitate the commission of terrorist acts]’, in the second indent of Article 1(2) of Common Position 2001/931 – which, moreover, the applicant fails to mention in its statement of the relevant provisions for the purposes of examining the first plea in law – can be interpreted as referring to groups or entities which commit, participate in or facilitate the commission of terrorist acts. By that wording, Common Position 2001/931 establishes a link between natural persons who are members of or direct terrorist organisations and such organisations.

31      It follows that, contrary to what the applicant claims, the Council cannot be required to identify in advance and designate the natural persons who materially committed the acts regarded as terrorist acts and ensure that they belong or are linked to the PKK before including the PKK on the lists at issue. It is necessary and sufficient for terrorist acts to be committed on behalf or with the assistance of a group or entity which may therefore be classified as a terrorist group or entity. If that were not the case, it would be incumbent on the Council to mention, in respect of each of the groups or entities referred to in Part II of the lists at issue, the corresponding natural persons in Part I of those lists, which does not meet the objective of the mechanism for combating terrorism established by Common Position 2001/931. With reference to an objective of general interest as fundamental to the international community as the fight by all means against the threats to international peace and security posed by acts of terrorism (see judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 123 and the case-law cited), it is not a matter of including organisations and their members on the lists relating to the freezing of funds, but rather of affecting those organisations in one way or another, whether through their members or as an organised entity.

32      It also follows that it is irrelevant that the applicant may allegedly not be regarded as a ‘group’, with the result that that argument can be rejected as ineffective. In so far as groups and entities may both be included on the lists relating to the freezing of funds, and inasmuch as the applicant concedes that it can, at the very least, be classified as an entity, the circumstance that it does not meet the criteria allowing it to be classified as a group is without consequence, just as the alleged inaccuracies on the part of the Council in that regard are irrelevant (see, to that effect, judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraphs 252 to 254).

33      That question of the classification of the applicant as a ‘group’ or as an ‘entity’ is separate from that of its identification, which is, moreover, also criticised in the context of the first plea. It is one thing to classify the PKK as a terrorist ‘group’ or ‘entity’, but it is quite another to specify what the PKK covers, as referred to by the contested measures for the freezing of funds.

34      It may be inferred from that distinction that the lack of precision in the identification of the PKK, to the alleged detriment of the principle of legal certainty, is not attributable to the applicable provisions, in that they set out the potential addressees of the measures for the freezing of funds. It cannot, therefore, be found that Article 1(2) of Common Position 2001/931 and Article 2(3) of Regulation No 2580/2001 undermine, in themselves, the principle of legal certainty; nor, therefore, can the plea of illegality raised against those provisions on the ground of that infringement be upheld.

35      As to the alleged lack of precision in its identification, it must be pointed out that the applicant expressly stated that it accepted a designation referring to it in so far as it is the ‘structured party’ which brought the present action. In those circumstances, as the Council rightly observes, the applicant is not entitled to challenge the contested measures in so far as, by listing the ‘PKK’, they are aimed at entities that are distinct from the entity which brought the action, since they alone are capable of challenging such a listing, whereas the applicant is neither the addressee of those listing measures nor concerned by them for the purposes of the fourth paragraph of Article 263 TFEU.

36      However, the applicant is entitled to rely on errors concerning its own designation and, in particular, to criticise the reference to KONGRA-GEL and KADEK as other names of the PKK. The applicant is in fact listed in the contested measures as the ‘Kurdistan Workers’ Party (PKK) (also known as “KADEK” and “KONGRA-GEL”)’.

37      Nevertheless, the criticisms raised in that regard by the applicant cannot succeed.

38      First, the Council indicates in the statement of reasons that KADEK is one of the former names of the PKK, and the applicant merely claims, without any supporting evidence, that KADEK ceased to exist in 2003, which only goes to support the Council’s description of the evolution of the PKK’s name.

39      Second, the applicant merely asserts, without substantiating its claim in any way, that KONGRA-GEL has never been under the control of the PKK. It is apparent from the contested measures that the Home Secretary considered, in an order of 2006, that KADEK and KONGRA-GEL were other names for the PKK (see paragraph 9 above). Furthermore, the evidence based on the deed of commitment to a total ban on anti-personnel mines, on which both parties rely – the Council, in order to support the relevance of the designation adopted in the contested measures, and the applicant, in order to claim that KONGRA-GEL and the PKK form two separate entities – supports the Council’s argument. That deed is submitted by the applicant itself, in the application and in the table of contents of the annexes to the application, as being a deed made by the PKK; it begins with ‘We, the Kurdistan People’s Congress (KONGRA-GEL)/People’s Defence Forces (HPG)’; and although it is initialled by the representatives of KONGRA-GEL and the HPG, it is signed by hand by the representative of the HPG only, with the applicant expressly accepting in its application that the PKK bears political responsibility for the actions of the HPG guerilla forces. Similarly, the study relating to the PKK annexed to the reply, to which the applicant referred at the hearing, does not make it possible to establish the alleged distinction between KONGRA-GEL and the PKK, since it presents KONGRA-GEL as the name of the assembly of one of the institutions established by the PKK in order to facilitate the integration and coordination of its political practices.

40      It follows from all the foregoing that the first plea in law must be rejected.

B.      The third plea: infringement of Article 1(4) of Common Position 2001/931

41      It should be recalled, as a preliminary point, that Article 1 of Common Position 2001/931 draws a distinction between the initial entry of a person or entity on the list relating to the freezing of funds, referred to in paragraph 4 thereof, and the retention on that list of a person or entity already listed, referred to in paragraph 6 thereof. Whereas the initial entry of a person or entity on the list relating to the freezing of funds presupposes the existence of a national decision from a competent authority, no provision is made for such a condition in order to retain the name of that person or entity on the list, since that retention is, in essence, an extension of the original listing and presupposes that there is an ongoing risk of the person or entity concerned being involved in terrorist activities, as initially established by the Council on the basis of the national decision on which that original listing was based (judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 59 to 61, and of 26 July 2017, Council v Hamas, C‑79/15 P, EU:C:2017:584, paragraphs 37 to 39).

42      It follows, first, that where the Council continues to rely on a national decision from a competent authority in order to decide, on the basis of Article 1(6) of Common Position 2001/931, to retain a person or entity on a list, the plea in law alleging infringement of Article 1(4) of Common Position 2001/931 is effective in support of an action brought against such a decision (see, to that effect, judgment of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraphs 229 and 230), which, moreover, is not disputed by the Council. It may be added, in that connection, that the Court of Justice did not call into question that effectiveness by holding, in its judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316, paragraph 38), that the General Court did not err in law in examining the decisions to retain the PKK on the lists at issue exclusively in the light of Article 1(6) of Common Position 2001/931. The Court of Justice in fact ruled on the General Court’s examination of the Council’s obligation to state reasons, thus holding, in essence, that compliance with that obligation to state reasons was to be examined in the light of the elements falling within the scope of Article 1(6) of Common Position 2001/931; furthermore, it referred the examination of all the other pleas – including those alleging infringement of Article 1(3) and (4) of that common position – back to the General Court.

43      It follows, second, that, in the present case, that plea will be examined solely with regard to the national decisions which formed the basis of the initial entry of the applicant in 2002, namely:

–        the order of the Home Secretary of 29 March 2001,

–        the decisions of the United States Government of 8 October 1997 and 31 October 2001.

44      The arguments relating to the French judicial decisions subsequent to the applicant’s initial entry, as well as those disputing the decisions relating to the follow-up to the aforementioned decisions adopted by the United Kingdom authorities in 2014 and 2020 and the United States authorities in 2019, together with the evidence independently relied on by the Council, will, however, be addressed in the context of the examination of the plea alleging infringement of Article 1(6) of Common Position 2001/931.

1.      The United Kingdom decision

45      The applicant disputes the order of the Home Secretary of 29 March 2001 being classified as a decision of a competent authority within the meaning of Article 1(4) of Common Position 2001/931, by relying on arguments based on the concept of ‘competent authority’, the information required to show that such a decision was taken and the date of the incidents referred to in that order.

(a)    Classification of the Home Secretary as a ‘competent authority’

46      The applicant takes the view that the Home Secretary cannot be classified as a ‘competent authority’ within the meaning of Article 1(4) of Common Position 2001/931. It submits that the Home Secretary is an administrative, rather than a judicial, authority. Orders of the Home Secretary are in the nature of administrative acts and are not adopted at the end of a procedure involving several stages, such as that characterising decisions in criminal matters. Furthermore, the proscriptions laid down by those orders are of unlimited duration in the absence of any periodic review. Moreover, the Home Secretary enjoys a wide discretion, in so far as the powers of the United Kingdom Parliament are limited to a collective assessment of the organisations concerned without being aware of the confidential information taken into account by that minister.

47      The applicant adds that, in any event, in the light of the United Kingdom’s withdrawal from the European Union on 31 January 2020, that order of the Home Secretary is no longer a decision of an authority of a Member State, with the result that it was for the Council to ascertain whether, as a decision of a third State, it was adopted with due respect for the rights of the defence and the right to effective judicial protection which, in the applicant’s submission, the Council failed to do. The applicant states, in that regard, that the judicial review of an order such as that at issue is not automatic and that the statements of reasons do not show that the right to be heard was observed.

48      As a preliminary point, it must be borne in mind that, on multiple occasions, the Court has held that the Home Secretary’s order of 29 March 2001, which is at issue in the present case, constituted a decision of a competent authority within the meaning of Article 1(4) of Common Position 2001/931 (see, to that effect, judgments of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraphs 144 and 145; of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 106; of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraphs 258 to 285; of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraphs 71 to 96; of 10 April 2019, Gamaa Islamya Égypte v Council, T‑643/16, EU:T:2019:238, paragraphs 108 to 133; and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 112).

49      According to case-law, even if the second subparagraph of Article 1(4) of Common Position 2001/931 indicates a preference for decisions from judicial authorities, it does not exclude the taking into account of decisions from administrative authorities where (i) those authorities are actually vested, in national law, with the power to adopt restrictive decisions against groups involved in terrorism and (ii) those authorities, although only administrative, may be regarded as ‘equivalent’ to judicial authorities (judgments of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 107; of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraph 259; of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraph 72; of 10 April 2019, Gamaa Islamya Égypte v Council, T‑643/16, EU:T:2019:238, paragraph 111; and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 114).

50      Administrative authorities may be regarded as equivalent to judicial authorities if their decisions are open to a judicial review that covers matters both of fact and of law (see, to that effect, judgments of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraph 145; of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraph 260; of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraph 73; of 10 April 2019, Gamaa Islamya Égypte v Council, T‑643/16, EU:T:2019:238, paragraph 112; and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 115).

51      Consequently, the fact that the courts of the relevant State have powers concerning the suppression of terrorism does not preclude the Council from taking account of decisions taken by the national administrative authority entrusted with the adoption of restrictive measures in relation to terrorism (judgments of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 108; of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraph 261; of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraph 74; of 10 April 2019, Gamaa Islamya Égypte v Council, T‑643/16, EU:T:2019:238, paragraph 113; and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 116).

52      Appeals against orders of the Home Secretary may be brought before the Proscribed Organisations Appeal Commission (POAC) (United Kingdom), which determines, both as regards questions of law and questions of fact, the matter in the light of judicial-review principles, and either party may bring an appeal on a point of law against the decision of the POAC before an appellate court with the permission of the POAC itself or, if permission is refused, of the appellate court (see, to that effect, judgments of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraph 262; of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraph 75; of 10 April 2019, Gamaa Islamya Égypte v Council, T‑643/16, EU:T:2019:238, paragraph 114; and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 117).

53      In those circumstances, the Home Secretary’s order of 2001 must be regarded as having been adopted by an administrative authority equivalent to a judicial authority and, thus, by a competent authority within the meaning of Article 1(4) of Common Position 2001/931 (see, to that effect, judgments of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraph 263; of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraph 76; of 10 April 2019, Gamaa Islamya Égypte v Council, T‑643/16, EU:T:2019:238, paragraph 115; and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 118).

54      Furthermore, it should be noted that, according to the case-law, Article 1(4) of Common Position 2001/931 does not require the decision of the competent authority to be taken in the context of criminal proceedings stricto sensu, provided that, in the light of the objectives of Common Position 2001/931, the purpose of the national proceedings in question is to combat terrorism in the broad sense through the adoption of measures of a preventive or punitive nature (see, to that effect, judgments of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraphs 269 to 271; of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraphs 82 to 84; of 10 April 2019, Gamaa Islamya Égypte v Council, T‑643/16, EU:T:2019:238, paragraphs 119 to 121; and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 119).

55      In the present case, the Home Secretary’s order of 2001 imposes measures proscribing organisations considered to be terrorist organisations and therefore forms part, as required by the case-law, of national proceedings seeking, primarily, the imposition on the PKK of measures of a preventive or punitive nature, in connection with the fight against terrorism (see, to that effect, judgments of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 115; of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraphs 272 and 273; of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraph 84; of 10 April 2019, Gamaa Islamya Égypte v Council, T‑643/16, EU:T:2019:238, paragraph 121; and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 120).

56      It follows from the foregoing considerations that the contested measures cannot be annulled on the ground that, in the statements of reasons relating thereto, the Council relied, in order to include the applicant’s name on the lists at issue, on the Home Secretary’s order of 2001, who is an administrative authority and whose decisions are not in the nature of criminal decisions.

57      That finding is not invalidated by the other arguments put forward by the applicant in support of the present plea.

58      In the first place, as regards the alleged absence of a procedure involving several stages, as is the case for judicial proceedings, it is not apparent from the wording of Article 1(4) of Common Position 2001/931 that, in order to serve as a basis for a listing, the national decision at issue must close a procedure which has taken place in several stages (judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 124).

59      In any event, the procedure giving rise to the Home Secretary’s proscription orders takes place in several stages. First of all, in order to proscribe an organisation, that authority must conduct a rigorous examination of the evidence on which the reasonable belief that the organisation is involved in terrorism is based. That evidence includes information from public information sources and intelligence services. In addition, the Home Secretary’s order comes after consultation with the entire government, as well as with the intelligence services and police authorities. Lastly, the proscription order is subject to review and approval by the two chambers of the United Kingdom Parliament in the context of the ratification procedure (judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraphs 125 to 128).

60      In the second place, as regards the alleged unlimited duration of the proscription laid down by the order of the Home Secretary, first, it should be noted that the fact that that order is not subject to an annual review obligation does not preclude the Council from relying on that decision in order to include the entity covered by that decision on the fund-freezing lists, since the Council, in accordance with its obligation to review, is required to verify whether, on the date on which it intends to maintain that entity on those lists, that decision, other decisions or subsequent factual evidence still justify that listing (judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 131).

61      Second, pursuant to section 4 of the UK Terrorism Act 2000, an organisation or person affected by a proscription measure may submit in writing an application to the Home Secretary requesting that he or she review whether it is appropriate to remove it from the list of proscribed organisations and, pursuant to section 5 of UK Terrorism Act 2000, if the Home Secretary refuses such an application, the applicant may appeal to the POAC, the decisions of which may themselves be appealed (judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 132) (see paragraph 52 above).

62      It follows that even though the UK Terrorism Act 2000 does not provide for an annual review of the Home Secretary’s proscription orders, the latter do not have unlimited effect.

63      In the third place, as regards the alleged broad discretion of the Home Secretary to proscribe terrorist organisations, it is important to point out that the Home Secretary issues proscription orders, not on the basis of political considerations, but pursuant to the provisions of national law defining terrorist acts, as is apparent from section 3 of the UK Terrorism Act 2000. Contrary to the applicant’s arguments with regard to that provision, the fact that it states that the Home Secretary is to proscribe an entity where ‘he believes that it is concerned in terrorism’ relates to the degree of proof required for entry on a list (see, to that effect, judgment of 13 December 2016, Al-Ghabra v Commission, T‑248/13, EU:T:2016:721, paragraphs 112 to 119) and is even less liable to allow a discretionary assessment to be made, since that standard of proof requires a degree of conviction – and, thus, precision in the statement of reasons – that is greater than that consisting in mere suspicions (see, to that effect, judgment of 13 December 2016, Al-Ghabra v Commission, T‑248/13, EU:T:2016:721, paragraphs 114 and 115).

64      It may be added that, in any event, the broad discretion of the Home Secretary is tempered by the parliamentary review and approval to which his or her draft orders are subject. The Court has thus already had occasion to consider, specifically with regard to draft orders of the Home Secretary, that all the members of the House of Commons, which is one of the two chambers of the United Kingdom Parliament which have to ratify the draft order, receive a summary of the facts concerning each of the organisations included on the list of the draft order, which implies the possibility of an individual examination by members of the House of Commons; that the debates of the House of Commons are in fact able to cover individual organisations, as is shown, moreover, by the positions taken in relation to the PKK during the parliamentary debate leading up to the ratification of the order of 2001 reproduced in the present case by the applicant in its application; and that the House of Commons remains free, in any event, to refuse to approve the draft order (judgment of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 122; see also, to that effect, judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraphs 136 and 137).

65      Fourth, as to the alleged consequences of the United Kingdom’s withdrawal from the European Union on the classification of the Home Secretary as a competent authority of a Member State, it should be observed that Article 1(4) of Common Position 2001/931 is a substantive provision laying down the conditions under which a national decision may justify an initial entry on the lists relating to the freezing of funds. It is settled case-law that compliance with the principles of legal certainty and the protection of legitimate expectations requires that a situation which existed under a substantive rule should not be called into question by subsequent rules, since these must be interpreted as not applying, in principle, to situations existing before their entry into force (see, to that effect, judgments of 6 July 1993, CT Control (Rotterdam) and JCT Benelux v Commission, C‑121/91 and C‑122/91, EU:C:1993:285, paragraph 22 and the case-law cited, and of 14 November 2002, Ilumitrónica, C‑251/00, EU:C:2002:655, paragraph 29 and the case-law cited). It follows that, once it has been established under the substantive rule which was relevant at the time, the classification of an act of an authority as an act of an authority of a Member State at the time of its adoption cannot be called into question by the effect of the withdrawal of that State from the European Union.

66      In the present case, it must be held that the classification of the order of 2001 as an act of a competent authority of a Member State, within the meaning of Article 1(4) of Common Position 2001/931, was established when the PKK was initially entered on the lists at issue in 2002. The Council was able, therefore, to continue to take the view, when adopting the contested measures, that the initial entry of the applicant on those lists was based on a decision of a competent authority of a Member State. It is consequently irrelevant that the United Kingdom was no longer a member of the European Union at the time when the contested measures were adopted.

67      It follows from the foregoing that all the arguments challenging the classification of the Home Secretary as a ‘competent authority’ within the meaning of Article 1(4) of Common Position 2001/931 must be rejected.

(b)    ‘Precise information or material in the relevant file which indicates that a decision has been taken by a competent authority’

68      The applicant claims, in essence, that the Council failed to set out precise information or material in the relevant file indicating that the Home Secretary’s order constituted a decision taken by a competent authority in relation to terrorist acts within the meaning of Article 1(3) and (4) of Common Position 2001/931. According to the applicant’s written pleadings, such a claim encompasses four complaints. First, the Council failed to state the reasons for which it regarded the Home Secretary as a ‘competent authority’. Second, the contested measures do not contain any description of the reasons underlying the order of 2001. Third, those measures also fail to specify the reasons for which the Council considered that the facts concerned fell within the scope of the concept of ‘terrorist act’ within the meaning of Article 1(3) of Common Position 2001/931. Fourth, the Council failed to grant access to the evidence on which the order of 2001 relied.

69      As to the first complaint, it should be observed that this forms part of a formal criticism of compliance with the obligation to state reasons (see, to that effect, judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraphs 329 to 333) and that it will therefore be examined in response to the plea alleging breach of that obligation (see paragraphs 188 to 190 below).

70      As to the second and third complaints, it is appropriate to recall, first, the content of those passages, contained in the statements of reasons for the contested measures, which deal with the Home Secretary’s order of 2001.

71      The Council indicates, in identical terms in the first, second and third contested measures, that it relied on the existence of decisions which it classifies as decisions of a competent authority within the meaning of Article 1(4) of Common Position 2001/931, including the order of 2001. The Council states that it had examined the factual information on which the decisions were based and had taken the view that the grounds fell within the scope of the concepts of ‘terrorist acts’ and ‘groups and entities involved in terrorist acts’ within the meaning of Article 1(2) and (3) of Common Position 2001/931 (paragraphs 1 to 6 of the statements of reasons). Furthermore, in Annex A to the statements of reasons, relating to the order of the Home Secretary, the Council states, inter alia, that that order was adopted in 2001 because the then Home Secretary had a reasonable belief that the PKK had committed and participated in terrorist acts within the meaning of Article 1(3) of Common Position 2001/931 (points 3, 4 and 17 of Annex A). It states that the terrorist acts concerned consisted of terrorist attacks believed to have been committed by the PKK since 1984 and that the PKK had undertaken, in the early 1990s, a terrorist campaign aimed at Western interests and investments with a view to bringing increased pressure on the Turkish Government, including the abduction of Western tourists and, in 1993/1994, the attack on a refinery and attacks on tourist resorts which had led to the death of foreign tourists. It observes that, even though the PKK appeared to have abandoned that campaign between 1995 and 1999, it had continued during that period to threaten to attack Turkish tourist resorts. The Council states that it considers that those acts fall within the scope of the aims set out in points (i) and (ii) of the first subparagraph of Article 1(3) of Common Position 2001/931 and the acts of violence set out in point (iii)(a), (c), (d), (f), (g) and (i) of the first subparagraph of Article 1(3) of Common Position 2001/931 (point 17 of Annex A).

72      It must be borne in mind, next, that it is apparent from the case-law that ‘the precise information or material in the relevant file’ required by Article 1(4) of Common Position 2001/931 must show that a decision has been taken in respect of those persons or entities by a national authority meeting the definition in that provision, in particular in order to enable those persons or entities to identify that decision, but does not relate to the content of that decision (see, to that effect, judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 148 and the case-law cited).

73      It follows that, in the present case, it may be considered that, in the contested measures, the Council provided ‘[sufficiently] precise information’ relating to the Home Secretary’s order of 2001, within the meaning of Article 1(4) of Common Position 2001/931, by stating the exact date of that order, its author and its legal basis, in this case the UK Terrorism Act 2000.

74      As to the fourth complaint, which concerns the evidence forming the basis of the order of 2001, it is apparent from the case-law that the evidence and clues on which that order was based are not to be described in the statements of reasons or disclosed with those statements of reasons. It is in fact clear from settled case-law that that order must be treated in the same way as a condemnation decision, since it is final in the sense that it does not have to be followed by an investigation and that its purpose is to ban the persons or entities concerned in the United Kingdom, with consequences in criminal law for anyone maintaining any kind of link with them (judgments of 10 September 2020, Hamas v Council, C‑122/19 P, not published, EU:C:2020:690, paragraphs 44 and 45; of 10 September 2020, Hamas v Council, C‑386/19 P, not published, EU:C:2020:691, paragraph 65; and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraphs 155 and 156). In accordance with the principle of sincere cooperation inherent in the two-tier system established by that common position, the Council is not required to verify, before adding the names of persons or entities to lists relating to the freezing of funds, that those condemnation decisions are based on serious and credible evidence or clues and must defer, in that respect, to the national authority’s appraisal (see, to that effect, judgments of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraphs 304 to 309; of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraphs 115 to 122; and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraphs 147 to 158; see also paragraph 21 above).

75      It follows that all the arguments challenging the Council’s compliance with the requirements relating to ‘precise information or material in the relevant file which indicates that a decision has been taken by a competent authority’ under Article 1(4) of Common Position 2001/931 must be rejected.

(c)    The date of the terrorist acts on the basis of which the PKK was proscribed by the Home Secretary

76      It should be noted, as a preliminary point, that the ‘distance in time’ to be assessed in the present case relates to the time separating the incidents taken into account in the Home Secretary’s order of 2001 and the date of that order.

77      Inasmuch as that argument is raised in support of the plea in law alleging infringement of Article 1(4) of Common Position 2001/931, it is appropriate to rule solely on the classification of the order of 2001 as a ‘decision of a competent authority’ within the meaning of that provision, in particular in the light of the date of the incidents taken into account by that order (see, to that effect, Opinion of Advocate General Sharpston in Council v LTTE, C‑599/14 P, EU:C:2016:723, point 80); the distance in time separating the incidents referred to in that order and the adoption thereof, on the one hand, and, on the other hand, the decisions retaining the applicant’s name on the list which are contested in the present case, will be examined in the context of the plea alleging infringement of Article 1(6) of Common Position 2001/931.

78      As regards the assessment in the present case of the distance in time at issue, it should be observed that the most recent facts taken into account in the Home Secretary’s order of 2001, consisting of threats of attacks on Turkish tourist resorts, cover the period from 1995 to 1999 (see paragraph 71 above). It should be recalled, moreover, that it is not for the Council to review the accuracy of the facts relied on in the national condemnation decisions which formed the basis of an initial entry (see paragraph 21 above), such as the order of 2001 (see paragraph 74 above).

79      It follows that, despite it disputing the accuracy of the threats of attacks concerned, since the applicant claims that the statements of reasons contain no evidence or arguments to substantiate those threats, these may be taken into account in the present case. It also follows that the distance in time between the most recent events taken into account (1999) and the date of the order of 2001 is approximately two years. Such a distance in time, of less than five years, is not regarded as excessive (see, to that effect, judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 208 and the case-law cited).

80      Article 1(4) of Common Position 2001/931 was therefore not infringed by reason of the date of the incidents referred to in the Home Secretary’s order of 2001, which was taken into account under that provision.

81      It follows from all the foregoing that the complaints directed against the fact that the contested measures are based on the Home Secretary’s order of 2001 must be rejected.

2.      The United States decisions

82      The applicant disputes the decisions of the United States authorities of 1997 and 2001 being classified as decisions of a competent authority within the meaning of Article 1(4) of Common Position 2001/931, by relying on arguments based on the concept of ‘competent authority’ and the information required to show that such decisions have been taken.

83      It is appropriate, in that connection, to recall the now settled case-law according to which the term ‘competent authority’ used in Article 1(4) of Common Position 2001/931 is not limited to the authorities of Member States but may, in principle, also include the authorities of third States (judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 22; of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraph 244; and of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraph 43).

84      That interpretation is justified, first, in the light of the wording of Article 1(4) of Common Position 2001/931, which does not limit the concept of ‘competent authorities’ to the authorities of the Member States, and, second, in the light of the objective of that common position, which was adopted in order to implement United Nations Security Council resolution 1373 (2001), which seeks to intensify the global fight against terrorism through the systematic and close cooperation of all States (judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 23; of 14 December 2018, Hamas v Council, T‑400/10 RENV, EU:T:2018:966, paragraph 245; and of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraph 44).

85      However, according to equally settled case-law, when the Council relies on a decision of a third State, it must first verify whether that decision has been taken in accordance with the rights of the defence and the right to effective judicial protection (judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 24 and 31, and of 4 September 2019, Hamas v Council, T‑308/18, EU:T:2019:557, paragraph 58).

86      It is therefore appropriate to begin by examining the applicant’s arguments disputing that verification, as carried out in the present case by the Council. It should be noted, in that connection, that the need to carry out that verification derives in particular from the purpose of the requirement, laid down in Article 1(4) of Common Position 2001/931, that the initial entry of a person or entity on the list relating to the freezing of funds must be based on a decision adopted by a competent authority. That requirement is designed to protect the persons or entities concerned by ensuring that they are initially entered on that list only on a sufficiently solid factual basis (see, to that effect, judgment 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 68). That objective cannot be attained unless the decisions of third States on which the Council bases initial entries of persons or entities are adopted in accordance with the rights of the defence and the right to effective judicial protection (judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 26).

87      In the present case, in Annex C to the statements of reasons for the contested measures, relating to the ‘Foreign Terrorist Organization’ (FTO) and ‘Specially Designated Global Terrorist’ (SDGT) designations of the PKK by the United States authorities, the Council states, inter alia, that the FTO designation was decided on 8 October 1997 and the SDGT designation was decided on 31 October 2001 (points 3 and 4 of Annex C).

88      The Council then states that the FTO designations are regularly reviewed every five years by the United States Secretary of State, if the designation has not in the meantime been the subject of a revocation request. The entity concerned may also itself request, every two years, that its designation be revoked by submitting evidence to show that the circumstances on which its FTO designation were based have significantly changed. The United States Secretary of State (United States) and the United States Congress (United States) may also of their own motion revoke an FTO designation. In addition, the entity concerned may seek judicial review of its FTO designation before the Circuit Court of Appeals for the District of Columbia (United States). As regards the SDGT designations, the Council states that these are not subject to regular review, but that they can be challenged before the federal courts (paragraphs 8 to 11 of Annex C to the statements of reasons). In addition, the Council states that the applicant’s FTO and SDGT designations were not challenged before the courts and tribunals of the United States and are not subject to any pending court proceedings (paragraphs 11 and 12 of Annex C to the statement of reasons). In the light of the review procedures and the description of the legal remedies available, the Council takes the view that the applicable United States legislation ensures protection of the rights of the defence and of the right to effective judicial protection (paragraph 13 of Annex C to the statement of reasons).

89      However, the General Court has already had occasion to hold, in a number of judgments ruling on statements of reasons identical to those annexed to the contested measures, that these were insufficient for it to be found that the Council had carried out the necessary verification as to compliance, in the United States of America, with the principle of respect for the rights of the defence (judgments of 6 March 2019, Hamas v Council, T‑289/15, EU:T:2019:138, paragraphs 54 to 65; of 10 April 2019, Gamaa Islamya Égypte v Council, T‑643/16, EU:T:2019:238, paragraphs 93 to 104; and of 4 September 2019, Hamas v Council, T‑308/18, EU:T:2019:557, paragraphs 65 to 76). Furthermore, the Court of Justice held, in the only judgment on appeal in which it ruled on a plea criticising the General Court’s analysis of the Council’s reliance on the decisions of the United States (judgment of 4 September 2019, Hamas v Council, T‑308/18, EU:T:2019:557), that those criticisms were inadmissible and that the General Court’s analysis in the judgment under appeal was res judicata (judgment of 23 November 2021, Council v Hamas, C‑833/19 P, EU:C:2021:950, paragraphs 36 to 40 and 82).

90      The principle of respect for the rights of the defence requires that persons affected by decisions which significantly affect their interests should be placed in a position in which they may effectively make known their views on the evidence against them on which the decisions in question are based. In the case of measures to place the names of persons or entities on a list relating to the freezing of funds, that principle entails the grounds for those measures being notified to those persons or entities at the same time as, or immediately after, the measures are adopted (see judgment of 4 September 2019, Hamas v Council, T‑308/18, EU:T:2019:557, paragraphs 65 and 66 and the case-law cited).

91      As regards the United States legislation governing the SDGT designation which gave rise to the decision of 2001, the general description provided by the Council in the statements of reasons does not mention any obligation on the part of the United States authorities to disclose a statement of reasons to the interested parties, or even to publish those decisions, with the result that it cannot be considered that the principle of the rights of the defence was observed (see, to that effect, judgment of 4 September 2019, Hamas v Council, T‑308/18, EU:T:2019:557, paragraphs 69 and 70).

92      As to the legislation governing the FTO designation which gave rise to the decision of 1997, this admittedly provides for publication of the decisions in question in the Federal Register. However, it is not apparent from the statements of reasons that, aside from the operative part of those decisions, a statement of reasons of any kind is set out in that publication or was made available to the applicant in any form (see, to that effect, judgment of 4 September 2019, Hamas v Council, T‑308/18, EU:T:2019:557, paragraphs 71 to 75). The ‘administrative file’ of the United States Department of State concerning the PKK dating from 2019 and available to the United States authorities, which is referred to in the statements of reasons, is in fact largely subsequent to the United States decisions of 1997 and 2001, and there is nothing to suggest that it contains data relating to those decisions and the statements of reasons thereof. Moreover, the Council does not specify in any way the conditions for access to that administrative file, merely asserting, and indeed solely in its written pleadings, that the applicant did not exercise its right of access to that file.

93      Such publication of the operative part of the 1997 decision in the Federal Register and thus the mere reference to that publication in the statements of reasons is insufficient for it to be found that the Council carried out the necessary verification as to compliance, in the United States of America, with the principle of the rights of the defence (judgment of 4 September 2019, Hamas v Council, T‑308/18, EU:T:2019:557, paragraph 76).

94      It follows that it must be found, in the present case, as the Court held in its judgments of 6 March 2019, Hamas v Council (T‑289/15, EU:T:2019:138, paragraph 65), of 10 April 2019, Gamaa Islamya Égypte v Council (T‑643/16, EU:T:2019:238, paragraph 104), and of 4 September 2019, Hamas v Council (T‑308/18, EU:T:2019:557, paragraph 76), that the United States decisions could not serve as a basis for the contested measures as decisions of competent authorities within the meaning of Article 1(4) of Common Position 2001/931, without it being necessary to examine the question of compliance with the right to effective judicial protection, or the other arguments disputing the lawfulness of the Council’s reliance on the decisions of the United States authorities under that provision.

95      It follows from all the foregoing that the plea alleging infringement of Article 1(4) of Common Position 2001/931 must be upheld, in that the contested measures are based on the United States decisions of 1997 and 2001, but rejected in so far as those measures rely on the Home Secretary’s order of 2001.

C.      The second plea in law, alleging infringement of Article 1(3) of Common Position 2001/931

96      Bearing in mind that the plea alleging infringement of Article 1(4) of Common Position 2001/931 has been upheld in so far as concerns the United States decisions of 1997 and 2001, the present plea will not be examined inasmuch as it disputes the classification of the incidents relied on in those decisions as terrorist incidents.

97      In support of the plea alleging infringement of Article 1(3) of Common Position 2001/931, the applicant puts forward two types of argument generally challenging, in respect of some of those incidents, the pursuit of a terrorist objective by acts carried out in the context of an armed conflict for the purposes of self-determination and more specifically, in respect of others amongst those incidents, the terrorist aims, as set out in that provision, allegedly pursued by some of the acts identified in the statements of reasons.

98      It must be stated as a preliminary point, following the exchanges between the parties concerning the Council’s obligation to verify the classification of the facts by the competent national authority, that such an obligation is incumbent on the Council and that the applicant’s arguments are therefore effective in so far as they dispute the outcome of the verification as to whether the acts taken into account by the national authorities match the definition of terrorist acts laid down in Article 1(3) of Common Position 2001/931.

99      As is apparent from the wording of the first subparagraph of Article 1(4) of Common Position 2001/931, referring in particular to ‘condemnation’ for ‘a terrorist act, an attempt to perpetrate, participate in or facilitate such an act’, the Council must verify whether the acts adopted by the national authorities do indeed correspond to terrorist acts, as defined in Article 1(3) of Common Position 2001/931 (see, to that effect, judgment of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 191). That verification is all the more necessary since, as is apparent from certain complaints raised by the applicant, definitions of the terrorist act vary from one State to another and do not necessarily correspond in all respects to the definition adopted in Common Position 2001/931.

100    However, where, in the course of the proceedings before the Council, the entity concerned does not dispute, in a detailed manner, that the national decision relates to terrorist acts within the meaning of Article 1(3) of Common Position 2001/931, the Council is not required to give a more detailed view on that question, and the indication in the statements of reasons that it has verified whether the reasons for the decisions taken by the competent national authorities fell within the definition of terrorism in Common Position 2001/931 is sufficient (see, to that effect, judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraphs 162 and 163 and the case-law cited).

101    It should also be noted that that verification carried out by the Council under Article 1(3) of Common Position 2001/931 relates solely to the incidents identified in the decisions of the national authorities on which the initial entry of the entity concerned was based. As is apparent from the judgment of 24 November 2021, LTTE v Council (T‑160/19, not published, EU:T:2021:817, paragraphs 168 and 276), when it retains an entity on the lists relating to the freezing of funds, the Council need not establish that that entity committed terrorist acts within the meaning of Article 1(3) of Common Position 2001/931, but rather that there was an ongoing risk of it being involved in such acts, which does not necessarily mean that it did commit those acts.

102    The fact remains, however, that, if it may be considered that the PKK committed terrorist acts after its initial entry on the list at issue, this a fortiori justifies maintaining its name on the list at issue.

103    It follows from all the foregoing that the plea alleging infringement of Article 1(3) of Common Position 2001/931 is ineffective in so far as it relates to the acts relied upon in order to retain the PKK on the lists at issue during the reviews carried out by the Council under Article 1(6) of Common Position 2001/931, but that the plea is, however, effective in so far as it disputes the classification as ‘terrorist acts’ of the incidents identified by the decisions of the national authorities which led to the initial entry of the applicant on the lists at issue.

1.      The argument that the aims referred to in Article 1(3) of Common Position 2001/931 should be interpreted in the light of legitimate armed conflict for the self-determination of the Kurdish people

104    The applicant denies that the acts attributed to it by the Council were committed with a terrorist aim, relying on the armed conflict between the PKK and the Republic of Türkiye. It is essential, in the applicant’s submission, to take account of the context of which the contested measures form part, namely a legitimate armed conflict for self-determination of the Kurdish people, between the PKK and the Turkish authorities, since the use of violence is in principle permitted in times of armed conflict under international law. In accordance with Article 3(5) and Article 21 TEU, Article 1(3) of Common Position 2001/931 should be interpreted in the light of international law concerning self-determination, international humanitarian law or the fundamental values of democracy and the rule of law. While noting the judgment of 14 March 2017, A and Others (C‑158/14, EU:C:2017:202), according to which acts may constitute terrorist acts during an armed conflict, the applicant emphasises the need to determine in which cases the acts committed during periods of armed conflict constitute terrorist acts.

105    The applicant therefore disputes the allegedly terrorist purposes of the acts attributed to it, emphasising the necessary distinction between carrying out an act and carrying it out for terrorist purposes. In particular, it intended neither to destabilise nor to destroy the Turkish State, but only to improve and bring it into line with the democratic principles adopted within the European Union, including the fundamental right to self-determination. It also aimed to compel the Turkish Government to agree to a better position for the Kurds, with the result that its efforts could not be regarded as wrongful. Lastly, the applicant maintains that none of the acts attributed to it were directed against the civilian population, since legitimate military objectives alone were targeted, even though those acts sometimes caused civilian casualties.

106    It should be recalled, in that connection, that it is clear from the case-law of both the Court of Justice and the General Court that the existence of an armed conflict within the meaning of international humanitarian law does not exclude the application of provisions of EU law relating to the prevention of terrorism, such as Common Position 2001/931, to possible terrorist acts committed in that context (judgment of 14 March 2017, A and Others, C‑158/14, EU:C:2017:202, paragraphs 97 and 98; see also judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 294 and the case-law cited).

107    In fact, Common Position 2001/931 makes no distinction as regards its scope according to whether or not the act in question is committed in the context of an armed conflict within the meaning of international humanitarian law. Moreover, the objectives of the European Union and its Member States are to combat terrorism, whatever form it may take, in accordance with the objectives of current international law (judgment of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 58).

108    Furthermore, the applicant does not dispute the applicability of Common Position 2001/931 in cases of armed conflict, but takes the view, in essence, that the provisions thereof should be interpreted taking into account the legitimate nature of the armed conflict which it conducts against the Turkish authorities for the self-determination of the Kurdish people.

109    It should be accepted, as the applicant does, that the customary principle of self-determination recalled, in particular, in Article 1 of the Charter of the United Nations, signed in San Francisco on 26 June 1945, is a principle of international law applicable to all non-self-governing territories and to all peoples who have not yet attained independence (see, to that effect, judgments of 21 December 2016, Council v Front Polisario, C‑104/16 P, EU:C:2016:973, paragraph 88, and of 4 September 2019, Hamas v Council, T‑308/18, EU:T:2019:557, paragraph 217).

110    Without taking a position on its application in the present case, or more so on the lawfulness of recourse to armed force in order to arrive at self-determination, it must be held that that principle does not mean that, in order to exercise the right to self-determination, a people or the inhabitants of a territory may have recourse to means that fall under Article 1(3) of Common Position 2001/931 (judgments of 4 September 2019, Hamas v Council, T‑308/18, EU:T:2019:557, paragraph 218, and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 299).

111    The Court has already had occasion to hold that an exception to the prohibition of terrorist acts in armed conflicts in favour of liberation movements engaged in an armed conflict against an ‘oppressive government’ has no basis in EU law or even in international law. The provisions of international law, more specifically resolution 1373 (2001) of the United Nations Security Council of 28 September 2001, the Geneva Convention of 12 August 1949 on the Protection of Civilian Persons in Time of War, Additional Protocols I and II to the Geneva Conventions of 8 June 1977 relating to the Protection of Victims of International and Non-International Armed Conflicts, and the International Convention for the Suppression of the Financing of Terrorism, signed in New York on 9 December 1999, do not distinguish, in their condemnation of terrorist acts, between the status of the author of the act and the objectives he or she pursues (judgment of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 68).

112    It should be observed, moreover, that in the present case, the applicant merely refers to a single provision – of EU law, in this instance – specifically supporting its assertion that there is an exception to the prohibition of terrorist acts in armed conflicts for the purposes of self-determination, namely Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism (OJ 2002 L 164, p. 3), and, more particularly, recital 11 of that framework decision, according to which ‘actions by armed forces during periods of armed conflict, which are governed by international humanitarian law within the meaning of these terms under that law, and, inasmuch as they are governed by other rules of international law, actions by the armed forces of a State in the exercise of their official duties are not governed by this Framework Decision’. The applicant adds that Framework Decision 2002/475 was accompanied by a statement by the Council explicitly excluding from its scope armed resistance such as that conducted by the various European resistance movements during World War II.

113    However, Common Position 2001/931, just like United Nations Security Council resolution 1373 (2001) which it implements at EU level, contains no provision comparable to recital 11 of Framework Decision 2002/475, and the absence of such a recital in that common position must be interpreted precisely as expressing the Council’s intention not to provide for any exception to the application of the provisions of the common position when it comes to preventing terrorism by combating its financing (judgment of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraphs 74 to 76).

114    It follows that the reference to Framework Decision 2002/475 and to a statement of the Council accompanying that framework decision is irrelevant.

115    Furthermore, a distinction must be drawn between, on the one hand, the objectives which a people or the inhabitants of a territory seek to attain and, on the other, the conduct in which they engage in order to attain it. The ‘aims’ referred to in points (i) to (iii) of the first subparagraph of Article 1(3) of Common Position 2001/931 do not correspond to such objectives, which may be described as ultimate or underlying objectives. They refer, as is apparent from the terms used (intimidation, compulsion, destabilisation or destruction), to the very nature of the acts carried out, which leads to the conclusion that the first subparagraph of Article 1(3) of Common Position 2001/931 refers only to ‘acts’ and not to ‘aims’ (see judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 300 and the case-law cited).

116    Thus, in particular, contrary to what the applicant claims, the aim pursued by the attacks against the fundamental structures of the Turkish State (point (iii) of the first subparagraph of Article 1(3) of Common Position 2001/931), which consists of altering those structures in order to render them more democratic, even if proven, does not have to be taken into account. Similarly, the term ‘unduly’ (point (ii) of the first subparagraph of Article 1(3) of Common Position 2001/931) must be understood as referring to the unlawful nature of the coercion exercised, in particular by the means of the coercive measures used, and is not to be assessed in the light of the allegedly legitimate nature of the aim pursued by the use of such coercion. Lastly, as regards the intimidation of the population (point (i) of the first subparagraph of Article 1(3) of Common Position 2001/931), in respect of which the applicant claims that the armed conflict which it conducts for the self-determination of the Kurdish people is such that only military objectives are targeted, it must be held that that argument has no basis in fact, since several of the acts mentioned in the statements of reasons – in particular attacks directed against tourist resorts – targeted civilian populations primarily, not collaterally (see, in particular, paragraphs 126 and 127 below).

117    Lastly, it must be pointed out that it cannot be inferred from the foregoing that the tool for preventing terrorism, namely Common Position 2001/931, and, more generally, the entire system of restrictive measures of the European Union, constitute an obstacle to the exercise of the right to self-determination of populations in oppressive States. Common Position 2001/931 and its implementation by the Council do not seek to determine who, in a conflict between a State and a group, is right or wrong, but to combat terrorism (judgment of 16 October 2014, LTTE v Council, T‑208/11 and T‑508/11, EU:T:2014:885, paragraph 71). In such a scenario, it is for the Council, making use of the broad discretion conferred on the EU institutions in the management of the external relations of the European Union (see, to that effect, judgments of 28 October 1982, Faust v Commission, 52/81, EU:C:1982:369, paragraph 27; of 16 June 1998, Racke, C‑162/96, EU:C:1998:293, paragraph 52; of 27 September 2007, Ikea Wholesale, C‑351/04, EU:C:2007:547, paragraph 40; and order of 6 September 2011, Mugraby v Council and Commission, T‑292/09, not published, EU:T:2011:418, paragraph 60), to decide in respect of whom, be they legal or natural persons linked to the State concerned or a population wishing to exercise its right to self-determination, restrictive measures are to be adopted.

118    Consequently, the applicant’s argument relating to the taking into account of the legitimate armed conflict for self-determination of the Kurdish people for the purposes of interpreting the aims referred to in the first subparagraph of Article 1(3) of Common Position 2001/931 must be rejected.

119    It follows that all the applicant’s arguments seeking to dispute the terrorist objectives referred to in respect of some of the acts attributed to it on the ground that these were reprisals against the Turkish army must also be rejected. In particular, contrary to what the applicant claims, the terrorist classification of the attack on a Turkish military post in Iraq by a PKK armed drone on 20 August 2020 cannot be rejected on the ground that it occurred in the context of the armed conflict between the PKK and the Republic of Türkiye.

2.      The challenge as to the terrorist nature of the aims pursued by some of the acts attributed to the applicant

120    The complaint alleging, in essence, infringement of the principle of legality of criminal offences and penalties, in that the Council could not base the contested measures on incidents which occurred before Common Position 2001/931 entered into force, must be rejected at the outset. In the light of the purely precautionary nature of the freezing of funds laid down by Common Position 2001/931, which consequently does not constitute a criminal or administrative penalty (see judgment of 7 December 2010, Fahas v Council, T‑49/07, EU:T:2010:499, paragraphs 67 and 68 and the case-law cited), that general principle of EU law, enshrined by the first sentence of Article 49(1) of the Charter, according to which ‘no one shall be held guilty of any criminal offence on account of any act … which did not constitute a criminal offence under national law or international law at the time when it was committed’, is not applicable in the present case (see, by analogy, judgment of 27 February 2014, Ezz and Others v Council, T‑256/11, EU:T:2014:93, paragraphs 70 to 81).

121    Moreover, the complaint alleging that some of the acts referred to by the United Kingdom authorities do not match the definition of offences within the meaning of the legislation of that State must be rejected as ineffective. It follows from the form of specific cooperation established between the Member States and the Council in relation to the fight against terrorism and from the Council’s resulting obligation to defer as far as possible to the assessment made by the competent national authority on which the Council’s decision is based that it must also defer to that authority as regards the classification of the factual evidence found in the light of the rules of national law. Although the requirement ‘as defined as an offence under national law’ is laid down in Article 1(3) of Common Position 2001/931, that classification falls within the strict national sphere and is independent as such, when it is applied, of the implementation of that common position.

122    As to the challenge to the correspondence of some of the acts attributed to the PKK to the criteria laid down by Article 1(3) of Common Position 2001/931 in order to define the concept of terrorist act, it should be observed, as a preliminary point, that, contrary to what the applicant claims, it is clear from the criticisms submitted in support of the present plea and examined below that, as regards incidents in respect of which it challenges the classification of terrorist acts, the applicant had sufficient information to put forward arguments in support of its challenge. It may, moreover, be inferred from the finding made by the Court of Justice in its judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316, paragraphs 62 and 80), that the account of the incidents on which the measures examined in that judgment were based, reproduced in the contested measures and even supplemented in some of those measures, was sufficiently reasoned except in so far as concerns the incident which took place in August 2014, so that the applicant had sufficient information to put forward arguments in support of its challenge to the terrorist classification of the incidents concerned.

123    Next, it may be considered that, irrespective of the fact that the terrorist nature of the aims pursued by the applicant is disputed only in respect of some of the acts referred to by the Council, those challenges do not allow the Council's assessments to be called into question.

124    It must be pointed out that each of the types of act referred to in point (iii)(a) to (k) of the first subparagraph of Article 1(3) of Common Position 2001/931 is capable of being in the nature of a terrorist act. An act does not have to combine the 11 items referred to in that provision in order to be classified as a ‘terrorist’ act.

125    It follows that it is immaterial that, as the applicant claims, some of the acts attributed to it did not cause death (subpoint (a)), did not involve the use of weapons (subpoint (f)), did not cause extensive destruction (subpoint (d)) or did not give rise to kidnapping (subpoint (c)), since, first, it is not disputed that those acts pursued other terrorist objectives referred to in point (iii)(a) to (k) of the first subparagraph of Article 1(3) and, second, that other acts, amongst those referred to, pursued one or other of those objectives.

126    In particular, as to the acts relied upon by the United Kingdom authorities in 2001, it should be recalled that the Council referred to these as follows in the statements of reasons for the contested measures (point 17 of Annex A to the statements of reasons):

–        the kidnapping of a number of Western tourists, including several British citizens, in the early 1990s;

–        the attack on a refinery in 1993/1994;

–        between 1993 and 1994, a campaign of attacks against tourist resorts which led to the death of foreign tourists, including a British citizen;

–        between 1995 and 1999, threats of attacks against Turkish tourist resorts.

127    Thus, even if, as the applicant maintains, it has not been established that the attack on the refinery carried out in 1993/1994 endangered human life under point (iii)(d) of the first subparagraph of Article 1(3) of Common Position 2001/931, the fact remains that neither the extensive destruction caused, referred to in that provision, nor the inevitable consequence of such destruction, namely the considerable economic losses, referred to above, along with endangering human life, as one of the two possible alternative outcomes of the aforementioned destruction, have been disputed by the applicant. Similarly, even if the attack on that refinery could not be attributed to the applicant, it should be noted that other acts were relied on by the United Kingdom authorities in 2001 (see paragraph 126 above), in respect of which the applicant disputes neither its involvement nor the terrorist aims pursued, which include attacks on people’s lives.

128    Furthermore, the applicant’s arguments disputing the terrorist classification of the acts at issue on account of differences between the definition of terrorist acts under United Kingdom legislation and that set out in Article 1(3) of Common Position 2001/931 must be rejected. The national legislation at issue, namely the UK Terrorism Act 2000, applies the same two-tier definition of terrorist acts as that contained in that common position, by defining those acts both by the ‘aims’ pursued and by the means employed to those ends, and both those ‘aims’ and those means match to a large degree. It is therefore of no consequence that the criterion of seriousness is attached to the means used under the United Kingdom legislation (referring, for example, to serious violence, serious damage) and to ‘aims’ in Common Position 2001/931 (referring, for example, to seriously intimidating a population, serious destabilising or destroying).

129    As to the acts relied upon by the United Kingdom authorities in 2014, it should be observed, for the sake of completeness (see paragraphs 101 and 102 above), with regard to the attack on the thermal energy plant in August 2014, that it follows from the term ‘interfering with’ for the terrorist purpose described as ‘interfering with or disrupting the supply of water, power or any other fundamental natural resource, the effect of which is to endanger human life’ in point (iii)(h) of the first subparagraph of Article 1(3) of Common Position 2001/931 that installations not yet in operation may also be concerned. ‘Interfering with’, a fortiori as opposed to ‘disrupting’, generally refers to any difficulty in obtaining supplies, which could arise if an installation were not brought into service on the scheduled date. The fact that the thermal power plant attacked by the PKK in 2014 was not yet in service at the time of that attack – which attack is, moreover, not disputed by the applicant – does not, therefore, preclude the existence of the terrorist aim referred to in point (iii)(h) of the first subparagraph of Article 1(3) of Common Position 2001/931.

130    Consequently, the plea alleging infringement of Article 1(3) of Common Position 2001/931, as framed in paragraph 96 above, must be rejected.

D.      The fourth plea in law, alleging infringement of Article 1(6) of Common Position 2001/931

131    It should be recalled that, in the context of a review carried out pursuant to Article 1(6) of Common Position 2001/931, the Council may retain the name of the person or entity concerned on a list relating to the freezing of funds if it concludes that there is an ongoing risk of that person or entity being involved in the terrorist activities which justified their initial entry on the list, that maintaining being, therefore, in essence, an extension of the initial entry of the person or entity concerned on that list. To that end, the Council is required to verify whether, since that initial entry, the factual situation has changed in such a way that it is no longer possible to draw the same conclusion in relation to the involvement of that person or entity in terrorist activities (see, to that effect, judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 46 and 51 and the case-law cited; of 20 June 2019, K.P., C‑458/19, EU:C:2019:522, paragraph 43; and of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 49).

132    In the process of verifying whether the risk of the person or entity concerned being involved in terrorist activities is ongoing, the subsequent fate of the national decision that served as the basis for the initial entry of that person or entity on the lists relating to the freezing of funds must be duly taken into consideration, in particular the repeal or withdrawal of that national decision as a result of new facts or material or any modification of the competent national authority’s assessment (judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 52, and of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 50).

133    In addition, the mere fact that the national decision that served as the basis for the initial entry on the list is still in force may, in view of the passage of time and in the light of changes in the circumstances of the case, no longer be sufficient to support the conclusion that the risk of the person or entity concerned being involved in terrorist activities is ongoing. In such a situation, particularly where the national decision which formed the basis of the initial entry on the list has not been subject to review by the competent authority, the Council is required to base the retention of that person or entity on the lists relating to the freezing of funds on an up-to-date assessment of the situation, and to take into account more recent facts which demonstrate that that risk still exists (see, to that effect, judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 52, 62 and 72; of 26 July 2017, Council v Hamas, C‑79/15 P, EU:C:2017:584, paragraphs 40 and 50; of 20 June 2019, K.P., C‑458/15, EU:C:2019:522, paragraphs 52, 60 and 61; and of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 51).

134    The conditions that trigger that obligation to update, namely the passage of time and developments in the circumstances of the present case, are alternative in nature, notwithstanding the use of the conjunction ‘and’ in the case-law referred to in paragraph 133 above. The Courts of the European Union have thus been able to confirm the Council’s obligation to update on the basis of the passage of time without necessarily also referring to any changes in circumstances during that period of time (judgment of 26 July 2017, Council v Hamas, C‑79/15 P, EU:C:2017:584, paragraphs 32 and 33), sometimes stating even that the period of time in question constitutes ‘in itself’ a factor justifying that update (judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 176). The mere fact that a significant period of time has elapsed may be sufficient to justify updating the Council’s assessment, since it is a question of assessing whether a risk is ongoing, and thus the development of the risk over time. Similarly, it is difficult to disregard an event which marks a significant change in circumstances, even if that change came about only a few months after the adoption of the measure maintaining the listing.

135    Where this is justified by the passage of time or changes in the circumstances of the case, the Council may rely on recent material taken not only from national decisions adopted by competent authorities but also from other sources and, accordingly, on its own assessments (see, to that effect, judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraphs 52, 62 and 72; of 26 July 2017, Council v Hamas, C‑79/15 P, EU:C:2017:584, paragraphs 40 and 50; of 20 June 2019, K.P., C‑458/15, EU:C:2019:522, paragraphs 52, 60 and 61; and of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 51).

136    In that regard, it should moreover be recalled that, regarding more recent material relating to the updated assessment of the situation, be it drawn from national decisions or from other sources, the Courts of the European Union are required to determine, first, whether the obligation to state reasons laid down in Article 296 TFEU has been complied with and, therefore, whether the reasons relied on are sufficiently detailed and specific, and, second, whether those reasons are substantiated, which requires those courts to ensure, as part of the review of the substantive legality of those reasons, that those acts have a sufficiently solid factual basis and to verify the facts alleged in the statement of reasons underpinning retention on the lists relating to the freezing of funds (see, to that effect, inter alia, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 118 and 119; of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 70; and of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 52).

137    For the purposes of that judicial review, the person or entity concerned may, in the action challenging the retention of their name on the list relating to the freezing of funds in question, dispute all the material relied on by the Council to demonstrate that the risk of their involvement in terrorist activities is ongoing, irrespective of whether that material is derived from a national decision adopted by a competent authority or from other sources. In the event of challenge, it is for the Council to establish that the factual findings made are well founded and for the Courts of the European Union to determine whether the facts concerned are made out (see judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 71 and the case-law cited, and of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 53). It must be emphasised, in that connection, that, in view of the system of specific cooperation between the Council and the Member States established by Common Position 2001/931 and the resulting obligation for the Council to rely as far as possible on the assessment carried out by the national authorities, the decisions of those authorities have special probative value, thus facilitating the establishment of the facts by the Council and the verification thereof by the Courts of the European Union where those facts have previously been established by competent national authorities.

138    It is in the light of those considerations that the Court must examine whether the contested measures were adopted in compliance with the requirements of Article 1(6) of Common Position 2001/931, by distinguishing between the first, second and third sets of contested measures, having regard to the material taken into account in connection with the updating of the Council’s assessment in the statements of reasons accompanying them.

139    In the first set of contested measures (see paragraph 9 above), the most recent national decisions of competent authorities to be taken into account – in this instance, the Home Secretary – date from 2014 and 2020.

140    In the 2014 decision, the Home Secretary relied on:

–        the attack, in May 2014, on the construction site for a new advanced military post in the course of which two soldiers were wounded;

–        the attack, in August 2014, on a thermal energy plant and the kidnapping of three Chinese engineers (point 18 of Annex A to the statements of reasons);

–        the PKK’s announcement, in October 2014, of the collapse of the peace talks with the Republic of Türkiye if the latter did not intervene and act against ISIL (point 19 of Annex A to the statements of reasons).

141    It should be emphasised, in that regard, that the decision of the Home Secretary of 2014 was adopted by a competent authority within the meaning of Article 1(4) of Common Position 2001/931, since it was adopted by the same authority as that which adopted the order of 2001 (see paragraph 67 above). Thus, although the Council is not required to rely on material taken from decisions of competent national authorities in order to retain the name of an entity on the lists relating to the freezing of funds (see paragraph 135 above), the fact remains that, where it does rely on such decisions for the purposes of that  retention, the material taken from such decisions must be regarded as having special probative value (see paragraph 137 above).

142    It should also be recalled that the Court of Justice held, in its judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316), that the reference to the attack of August 2014, which is identical in the acts contested in that judgment and in the first set of contested measures, was insufficiently reasoned, but that, by contrast, the references to the attacks of May and October 2014 were sufficiently reasoned (paragraphs 78 to 80 of that judgment).

143    It follows that, in view of the rejection of the applicant’s arguments challenging the classification of the May 2014 attack as a terrorist act (see paragraph 119 above), and irrespective of the classification of the collapse of the peace talks, which is disputed by the applicant, the Council validly relied, in any event, on the PKK’s involvement in terrorist acts up to the date of that attack, namely 13 May 2014.

144    Furthermore, as regards the applicant’s argument that the 2014 decision cannot be taken into account, since the application for deproscription to which it replies does not come from the PKK, it is clear from the case-law that the subsequent fate of the national decision which served as the basis for the initial entry on the lists must duly be taken into consideration, and that what counts in that regard is the possible repeal or withdrawal or, conversely, the possible confirmation of that national decision as a result of new facts or material or any modification of the competent national authority’s assessment (see, to that effect, judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 52, and of 26 July 2017, Council v Hamas, C‑79/15 P, EU:C:2017:584, paragraph 30). It may also be noted that the Council stated, in its statements of reasons (point 13 of Annex A), that the PKK itself had unsuccessfully applied for deproscription on three occasions (in 2001, 2009 and 2014), from which it may be inferred that the competent authority had at its disposal, in particular in 2014, the arguments and evidence put forward by the PKK in support of its application. In any event, inasmuch as the update required by Article 1(6) of Common Position 2001/931 does not compel the Council to rely on recent material drawn solely from national decisions adopted by competent authorities (see paragraph 135 above and paragraph 148 below), it is not decisive in the present case that the circumstances of the adoption of the 2014 decision allegedly prevent it from being regarded as a national decision of a competent authority.

145    However, as the applicant rightly submits, the Home Secretary’s order of 2020 cannot be taken into account, since it proscribes TAK as a terrorist organisation, which the Council regards as an organisation separate from the PKK, since it is referred to separately on the EU lists at issue.

146    In the first set of contested measures, the Council also rightly relied on an incident in June 2017 relied upon by the United States authorities. This was the attack on a Turkish military vehicle by an explosive device in the southern province of Hakkari (Türkiye), during which a Turkish soldier was killed (point 16, final indent, of Annex C to the statements of reasons). That attack is presented as being included in the 2019 administrative file of the United States authorities. The source of that information, namely the Reuters news agency, is cited.

147    It should be noted at the outset that the applicant does not dispute the truth of that attack, or that it is the perpetrator of that attack, merely rejecting the classification thereof as a terrorist act within the meaning of Article 1(3) of Common Position 2001/931, on the irrelevant ground that that act forms part of the armed conflict between the PKK and the Republic of Türkiye (see paragraphs 118 and 119 above). The reference to that attack in the first set of contested measures is, moreover, sufficiently reasoned (see paragraph 195 below).

148    It should be pointed out, moreover, that the fact that the allegedly terrorist acts relied upon for the purpose of retention on the lists at issue – the applicant disputes neither the accuracy of those acts nor their attribution to the PKK – were established by a national authority which cannot be classified as a competent authority within the meaning of Common Position 2001/931 does not prevent the Council from legitimately relying on such acts in the context of its review of the risk of terrorist involvement. When reviewing the grounds for listing an entity, the Council is not required to rely on the findings contained in a decision of a competent authority which satisfies the criteria under Article 1(4) of Common Position 2001/931 (see, to that effect, judgments of 4 September 2019, Hamas v Council, T‑308/18, EU:T:2019:557, paragraph 150, and of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 143). It is therefore not decisive in the present case, as is apparent from paragraph 94 above, that the classification as a competent authority should be denied to the United States authorities.

149    The most recent incidents taken into account in the first set of contested measures – the classification of which incidents as terrorist acts has not, moreover, been validly challenged (see paragraphs 119 and 147 above) – therefore date back to May 2014 and June 2017.

150    As to the second set of contested measures (see paragraph 10 above), the accompanying statements of reasons indicated, in addition to the previous reasons, that the Council had further examined the incident of 24 August 2014, mentioned previously and consisting in the attack on a thermal energy plant and the kidnapping of three Chinese engineers, and had concluded that that incident was attributable to the PKK and could be classified as a terrorist act within the meaning of Article 1(3) of Common Position 2001/931.

151    In view of the clarifications given by the Council in respect of that incident in August 2014, it may be considered that (i) the obligation to state reasons has already been fulfilled, since the date and location of that incident have been stated, in response to the judgment of 22 April 2021, Council v PKK, (C‑46/19 P, EU:C:2021:316, paragraph 78), which found there to be insufficient reasoning on account of the absence of those details (see also paragraph 179 below), and (ii) the kidnapping of the Chinese engineers has been established, in view of the numerous articles in the Chinese and Western press, communicated to the applicant by the Council along with the statements of reasons for the second set of contested measures, which contained the statements made by the Chinese Embassy in Türkiye announcing the kidnapping and subsequent release of the engineers.

152    The most recent incidents taken into account in the second set of contested measures – the classification of which incidents as terrorist acts has not, moreover, been validly challenged (see paragraphs 129 and 147 above) – consequently date back to August 2014 and June 2017.

153    As regards the third set of contested measures (see paragraph 11 above), the accompanying statements of reasons refer, in addition to the previous reasons, to the attack on a Turkish military outpost in Iraq by a PKK armed drone on 20 August 2020, which the Council considers to be a terrorist act showing that the risk of PKK’s terrorist involvement is ongoing.

154    The applicant disputes neither the accuracy nor the attribution of that incident to the PKK. It may be noted, furthermore, that it is apparent from a document provided by the applicant itself as an annex to its statement of modification that the drone attack at issue may be regarded as having actually taken place and may be attributed to the PKK. That document, consisting of an article taken from the website of the American business magazine Forbes, published on 27 August 2020, describes a video of the attack at issue, stating that it was released by the PKK, which claims responsibility for the attack on that date and in that location. It may be recalled, in that regard, that journalistic sources are regarded by settled case-law as being capable of establishing facts justifying retention on the lists relating to the freezing of funds (see, to that effect, judgments of 26 October 2016, Kaddour v Council, T‑155/15, not published, EU:T:2016:628, paragraphs 85 to 88, and of 24 November 2021, Al Zoubi v Council, T‑257/19, EU:T:2021:819, paragraphs 75 to 80 (not published)). Moreover, the article produced by the applicant in annex to its statement of modification is not capable of calling into question the factual accuracy and attribution of the attack in question, since it seeks principally to challenge the ‘rehabilitation’ enjoyed by Turkish drones on account of their being used by the Ukrainians in their defence against the Russian invasion of Ukraine.

155    As to the applicant’s challenge to the classification of that drone attack as a terrorist act on the ground that it occurred in the context of the armed conflict between the PKK and the Republic of Türkiye, suffice it to recall that the context of armed conflict does not preclude such a classification (see paragraph 119 above). The reference to that attack in the third set of contested measures is, moreover, sufficiently reasoned, since the date and place of the attack are indicated.

156    The most recent incidents correctly taken into account in the third set of contested measures – the classification of which as terrorist acts has not, moreover, been validly challenged – date, therefore, from June 2017 and August 2020.

157    It follows that the Council validly updated its assessment of the risk of terrorist involvement of the PKK up until June 2017 as regards the first and second sets of contested measures, dated February and July 2021 respectively, and up until August 2020 in respect of the third set of contested measures, dated February 2022. It also follows, in view of the ‘distance in time’ of less than five years separating the facts at issue and the contested measures, that the Council was not required to continue updating its assessment beyond taking those facts into account (see, to that effect, judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 208 and the case-law cited).

158    That finding is not called into question by the alleged changes in circumstances, relied on by the applicant as necessitating a supplementary update to the risk of terrorist involvement. The applicant claims, in particular, that the Council failed to take into account the considerable recent information that it provided relating to the peace process and its failure, the PKK’s role in combating ISIL and the Republic of Türkiye’s transformation into a totalitarian state which continues to oppress the Kurdish people, thus demonstrating a significant change in circumstances, which, moreover, was acknowledged by the Court in its judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788). It also criticises the Council for failing to take into account, wrongly, the withdrawal of the United Kingdom from the European Union.

159    As regards the withdrawal of the United Kingdom from the European Union, this is a change in circumstances of no consequence in the present case, since the only national decision concerned is the order of the Home Secretary adopted in February 2020, that is to say after that withdrawal, but which, for the reasons set out in paragraph 145 above, cannot be taken into account in the present case (see also paragraphs 65 and 66 above). In any event, even if it were to be considered that the Home Secretary is no longer a competent authority of a Member State in respect of all the decisions taken by that minister, the fact that the allegedly terrorist acts relied upon for the purposes of retaining the applicant’s name on the lists at issue – neither the accuracy of those acts nor their attribution to the applicant are disputed by the latter – have been established by an authority that cannot be classified as a competent authority within the meaning of Common Position 2001/931 does not prevent the Council from legitimately relying on such acts in its review of the risk of terrorist involvement (see paragraph 148 above).

160    As to the other alleged changes in circumstances which were taken into account in the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788), and which the applicant substantiates by referring to the part of its pleadings setting out the background to the dispute and the evidence relating thereto submitted in annex to those pleadings, these cannot justify the Council being required to continue updating its assessment of the ongoing risk of terrorist involvement on the part of the PKK.

161    The PKK’s alleged involvement in a peace process, referred to solely in the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788), ended, as the applicant itself admits, in failure in 2015 (see paragraph 158 above), meaning that that process came to an end before the most recent terrorist acts validly taken into account by the Council took place. As to the statements made by leaders of the PKK dated May 2019 and October 2020, indicating, in the former, that the PKK was open to political negotiations and pointing to the need for a democratic solution rather than a culture of conflict and the use of physical violence and, in the latter, the PKK’s intention to sign an agreement to disarm, these remained purely unilateral and hypothetical. The applicant does not refer to any follow-up to them in terms of peace talks, or even in terms of the cessation of terrorist activities, which is, moreover, confirmed by the drone attack of August 2020 and the wording itself of the statement of October 2020 pointing to the difficulty of signing an agreement to disarm in view of the desire on the part of the Turkish authorities to continue with the war and the ‘policy to eradicate’ the PKK.

162    The applicant’s participation in the fight against ISIL began at the same time as the warning issued by the PKK in October 2014 to the Turkish authorities, threatening to break off peace talks if the Republic of Türkiye did not intervene and act against ISIL (see paragraph 140 above). In doing so, that participation shows that there was no easing of tensions between the PKK and the Republic of Türkiye and does not imply, as such, the cessation of its conflict with the Republic of Türkiye and of the activities which may be regarded as terrorist acts in that context (see paragraphs 118 and 119 above), even though certain national authorities or courts – in particular the Belgian courts – ruled otherwise in the light of their own provisions of national law. It cannot therefore be inferred from that fact that there was a change such as to require the Council to check, beyond the facts which it took into consideration in the contested measures, whether the risk of the PKK’s terrorist involvement was ongoing. That is all the more so since the applicant claims, as another change in circumstances, that the Turkish State has been transformed into a totalitarian State which oppresses the Kurdish people, thereby demonstrating the PKK’s ongoing hostility towards the Turkish authorities. Since that oppression is also relied on, in essence, in support of the PKK’s arguments relating to the armed conflict between itself and the Republic of Türkiye, it does not reflect changes involving, as such, peace-making on the part of the PKK.

163    It follows from all the foregoing that the plea alleging infringement of Article 1(6) of Common Position 2001/931 must be rejected, without it being necessary to examine the arguments criticising the Council’s support for the decisions of the United States and French authorities which are based on incidents prior to 2014.

E.      The fifth plea in law, alleging infringement of the principle of proportionality

164    The applicant submits that the retention of its name on the lists at issue is an inappropriate means of pursuing the aim of combating terrorism, which forms part of the objective of safeguarding the values, fundamental interests, security, independence and integrity of the European Union laid down in Article 21(2) and (3) TEU, in view of the absence of any acts of violence committed by the PKK against the European Union, in particular since its retention on the lists hinders the attainment of other objectives laid down by that provision, namely the consolidation of democracy and the preservation of peace, both of which are supported by the PKK. Moreover, the retention of the PKK on the lists at issue is disproportionate in view of its repercussions in the Member States and Türkiye on the political activities of the PKK and on Kurds in general, in particular women, including in terms of freedom of assembly and expression, and in view of the seemingly indefinite duration of that listing.

165    It should be borne in mind, in that connection, that fundamental rights, including the right to property, freedom of expression or the right of assembly, do not enjoy absolute protection under EU law. The exercise of those rights may be restricted, provided, first, that those restrictions are duly justified by objectives of public interest pursued by the European Union and, second, that they do not constitute, in relation to those objectives, a disproportionate or intolerable interference, impairing the very substance of those rights (see, to that effect, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 121 and the case-law cited).

166    As regards the first condition, it is settled case-law that the freezing of the funds, financial assets and other economic resources of the persons and entities identified in accordance with the rules laid down in Regulation No 2580/2001 and Common Position 2001/931 as being involved in the financing of terrorism pursue an objective of public interest since it forms part of the fight against terrorist acts posing a threat to international peace and security within the meaning of Article 21(2)(c) TEU (see, to that effect, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 123 and the case-law cited), and not, as the applicant wrongly claims, part of safeguarding the security and integrity of the European Union, set out in Article 21(2)(a) TEU. For that reason, it cannot be considered that only terrorist acts committed against the interests of the European Union, Union citizens or on the territory of the European Union can lead to inclusion on the lists relating to the freezing of funds.

167    As to the second condition, it must be pointed out that measures for the freezing of funds are not, in principle, regarded as disproportionate, intolerable or as impairing the substance of the fundamental rights or of some of them.

168    Indeed, that type of measure may be necessary, in a democratic society, to combat terrorism (see, to that effect, judgment of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraph 129 and the case-law cited). Moreover, the measures freezing funds are not absolute, in view of the fact that Articles 5 and 6 of Regulation No 2580/2001 provide for the possibility, first, to authorise the use of frozen funds to meet essential needs or to satisfy certain commitments and, second, to grant specific authorisation, in certain circumstances, to unfreeze funds, other financial assets or other economic resources (see judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 127 and the case-law cited).

169    Furthermore, the freezing of funds is not a permanent measure, since, pursuant to Article 1(6) of Common Position 2001/931, the retention of the names of persons and entities on fund-freezing lists is subject to periodic review so as to ensure that the persons who, and entities which, no longer meet the criteria for inclusion are removed from those lists (judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 129).

170    In the present case, it follows that, inasmuch as it has been found that the Council had, in the contested measures, correctly conducted the review of the ongoing risk of the applicant’s terrorist involvement, having regard, inter alia, to the changes in circumstances claimed by the latter (see paragraphs 158 to 162 above), it may be considered that the principle of proportionality has been observed.

171    That conclusion is not called into question by the alleged ineffectiveness of the fund-freezing measures at issue and, therefore, their allegedly inappropriate nature, in that they did not prevent the violence against Kurds and did not lead to a peaceful and democratic resolution of the conflict between the Kurdish people and the Turkish authorities. That is not the aim of the contested measures, as is apparent, moreover, from their headings reproducing that of Common Position 2001/931 and the reference to the aim of combating terrorism, an objective which, moreover, is not disputed by the applicant either as to its existence or as to its legitimacy which is, furthermore, confirmed by the case-law referred to in paragraph 166 above.

172    The alleged effects on the Kurdish people and, more generally, on any person wishing to support them, are also irrelevant. The contested measures refer exclusively to the fight against terrorism and the PKK, mentioned only in the annexes to those measures, as a participant in terrorist acts. Thus, even if the acts complained of by the applicant against persons unconnected with it – such as obstacles to freedom of assembly and freedom of expression – were proven, whether these be by the authorities of Member States or by the Turkish authorities, to which the contested measures do not, moreover, apply, those acts cannot be regarded as resulting from those measures, which merely impose the freezing of the PKK’s funds, and thus do not permit a finding that they are disproportionate.

173    It follows that the plea alleging breach of the principle of proportionality must be rejected.

F.      The sixth plea in law, alleging breach of the obligation to state reasons

174    The applicant claims, in essence, that the Council disregarded its obligation to state reasons, in that it failed adequately to identify the ‘conceptualisation’ of the entity listed under the name ‘PKK’; failed to establish the involvement of the PKK in the terrorist acts relied on; failed to explain why the national decisions on which it relied were decisions for the purposes of Article 1(4) of Common Position 2001/931; failed to state the actual and precise grounds on which the United States decisions were based; failed to verify whether the acts examined by the national authorities could be classified as terrorist acts within the meaning of Article 1(3) of Common Position 2001/931; failed to verify whether the rights of the defence and the right to effective judicial protection had been guaranteed by the United States authorities, or by the United Kingdom authorities since the withdrawal of that State from the European Union; failed to demonstrate the relevance of the United Kingdom decisions of 2001, 2006, 2014 and 2020, the United States decisions of 1997 and 2001 and the French decisions, having regard in particular to the time which has elapsed; and failed to provide sufficient explanations relating to the 2019 United States State Department administrative file relating to the PKK.

175    It should be recalled that, according to the settled case-law, the statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure for the purpose of assessing whether it is well founded and to enable the court having jurisdiction to exercise its power of review (see judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 47 and the case-law cited).

176    The statement of reasons thus required must be appropriate to the measure at issue and to the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of concern, for the purpose of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations. In particular, it is not necessary for the reasoning to go into all the relevant facts and points of law or to provide a detailed answer to the considerations set out by the person concerned when consulted prior to the adoption of that same measure, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. Consequently, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him or her to understand the scope of the measure concerning him or her (see judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraph 48 and the case-law cited).

177    In so far as concerns, more specifically, the retention of the name of a person or entity on a list relating to the freezing of funds, the Courts of the European Union are required, in their examination of whether the obligation to state reasons laid down in Article 296 TFEU has been complied with, to verify whether the reasons relied on are sufficiently detailed and specific (see judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraphs 52 and 56 and the case-law cited).

178    It follows that, in order to fulfil the obligation to state reasons laid down in Article 296 TFEU, it was incumbent, in the present case, on the Council to provide sufficiently detailed and specific reasons to enable the applicant to ascertain the reasons for maintaining its name on the lists at issue and for the Court to exercise its power of review.

179    In the present case, it must be recalled, as a preliminary point, that the Court of Justice’s finding, in its judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316, paragraph 78), that adequate reasons had not been provided concerning the attack on a thermal power plant and the kidnapping of three Chinese engineers in August 2014 was remedied in the second and third sets of contested measures (see paragraph 151 above). As regards the relevant facts justifying retention on the lists relating to the freezing of funds, compliance with the obligation to state reasons presupposes the accuracy of the nature, exact date (day) and place of the commission thereof, some approximation being permitted in that regard, since the region or province may be mentioned and not necessarily the exact city (see, to that effect, judgment of 22 April 2021, Council v PKK, C‑46/19 P, EU:C:2021:316, paragraphs 61, 62 and 78 to 80). The statements of reasons for the second and third sets of contested measures provide the clarifications which the Court of Justice considered to be lacking, that is to say, the exact date of the attack in question (24 August 2014) and the place where it occurred (Silopi, south-east Türkiye). It follows that the second and third sets of contested measures are not vitiated by an inadequate statement of reasons as regards the reference made by the United Kingdom authorities to the attack in question.

180    However, such an inadequate statement of reasons must be found of the Court’s own motion in relation to the first set of contested measures, in the absence of any specific challenge on the part of the applicant, but after having asked the parties, by way of a written question put by the General Court to be answered at the hearing, to state their view in that connection. The first set of contested measures refer to the incident in question in the same terms as those considered by the Court of Justice as characterising an inadequate statement of reasons.

181    As regards the eight complaints raised by the applicant, it must be pointed out, first of all, in view of the upholding of the plea alleging infringement of Article 1(4) of Common Position 2001/931 in so far as concerns the decisions of the United States authorities of 1997 and 2001, that there is no need to examine the complaints concerning reliance on those decisions of the United States.

182    Next, it should be borne in mind that the duty to state reasons established by Article 296 TFEU is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect. It follows that objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a plea in law alleging an inadequate statement of reasons or a lack of such a statement (see judgment of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 37 and the case-law cited; judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 143). It should be stated, in that regard, that the inadequacy of the examination carried out by the Council constitutes an error vitiating the substantive legality of the contested measure (see, to that effect, judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 72).

183    In the present case, the first, second, fifth, sixth and seventh complaints put forward by the applicant in support of its plea alleging infringement of the obligation to state reasons in fact criticise the extent and content of the review carried out by the Council for the purposes of adopting the contested measures, as is apparent, moreover, from the reference made by the applicant to its earlier pleas alleging substantive errors.

184    Thus, the first complaint, criticising the insufficient identification of the PKK, has been examined in the context of the first plea, and the second complaint, relating to the failure to establish the PKK’s involvement in terrorist acts, has been examined in the context of the pleas alleging infringement of Article 1(3), (4) and (6) of Common Position 2001/931, to which the applicant refers, moreover.

185    Similarly, the Council’s compliance with its obligation to ensure that the acts relied on by the national authorities corresponded to the definition of terrorist acts set out in Common Position 2001/931 (fifth complaint) has been examined in response to the plea alleging infringement of Article 1(3) of Common Position 2001/931. As regards ensuring that the rights of the defence and the right to judicial protection were sufficiently guaranteed by the authorities concerned (sixth complaint), this has been examined in response to the plea alleging infringement of Article 1(4) of Common Position 2001/931.

186    The same applies to the Council’s obligations in reviewing the lists at issue and the taking into account, in that regard, of the time elapsed and the national decisions taken following those which formed the basis of the initial entry (seventh complaint), which have been examined in the context of the plea alleging infringement of Article 1(6) of Common Position 2001/931, without any examination of the French decisions being necessary to that end.

187    As for the other three complaints put forward in support of the plea alleging infringement of the obligation to state reasons and indeed relating to such an infringement, none of these can succeed.

188    In the first place, the applicant claims, by its third complaint, that the Council disregarded its obligation to state reasons by failing to explain why the national decisions on which it relied were decisions within the meaning of Article 1(4) of Common Position 2001/931.

189    The Court held, in its judgment of 24 November 2021, LTTE v Council (T‑160/19, not published, EU:T:2021:817, paragraphs 329 and 330), that it was not for the Council to explain how the national decision on which it relies constitutes a decision of a competent authority within the meaning of Common Position 2001/931 and that it was only if that classification was challenged in detail by the person or entity concerned during the administrative procedure which took place before the Council, which is not the case here, that the latter had to explain further its reasons for the measures adopted on that point.

190    In any event, in the contested measures, in a section specifically devoted to ‘the match with the requirements for the competent national authority contemplated under [Common Position 2001/931]’ in the statements of reasons, the Council provided such a statement of reasons, in particular by referring to the case-law of the Court which has already had occasion to examine decisions of the same national authorities as those at issue in the present case in the light of Article 1(4) of that common position in order to conclude that such correspondence exists (paragraphs 3 to 5).

191    It follows, in the present case, that the third complaint alleging an inadequate statement of reasons must be rejected.

192    In the second place, the applicant claims, by its fourth and eighth complaints, that the Council disregarded its obligation to state reasons, respectively, by failing to state the actual and precise grounds on which the United States decisions relied and by failing to provide sufficient explanations concerning the 2019 United States State Department administrative file referred to in the statements of reasons for the contested measures.

193    In view of the upholding of the plea alleging infringement of Article 1(4) of Common Position 2001/931 in respect of the United States decisions of 1997 and 2001 (see paragraph 181 above) and in so far as the rejection of the plea alleging infringement of Article 1(6) of Common Position 2001/931 is based in particular on the taking into account of the 2017 attack relied on by the United States authorities in their 2019 review (see paragraphs 149, 152 and 156 above), it is appropriate to verify whether the statement of reasons relating to that attack is sufficient.

194    In that connection, it must be stated that, in so far as that attack is taken into account under Article 1(6) of Common Position 2001/931, it is irrelevant that it was not relied upon by a competent authority, just as it is therefore irrelevant that, as the applicant claims, it is not clear from the statements of reasons in the contested measures whether that attack, as part of the 2019 United States State Department administrative file, also formed the basis of the decision taken by the United States authorities in 2019 to maintain the terrorist designation.

195    Furthermore, the details required by the case-law (see paragraph 179 above) are set out in the statements of reasons for the contested measures, which refer to the nature of the attack in question (attack on a Turkish military vehicle by an explosive device), the date thereof (23 October 2017), the place where it was committed (South Hakkari province) and the victims it caused (death of a Turkish soldier).

196    It follows that, with the exception of the failure to state adequate reasons found by the Court of its own motion in paragraph 180 above in relation to the reference to the August 2014 incident in the first set of contested measures, the plea alleging infringement of the obligation to state reasons, as defined in paragraph 181 above, must be rejected.

G.      The seventh plea, alleging infringement of the rights of the defence and the right to effective judicial protection

197    The applicant puts forward four complaints in support of this plea. First, the Council, in disregard of the criteria identified in the judgment of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518), failed to disclose to the applicant the evidence on which the United States authorities relied. Second, it also failed to provide the applicant with the relevant information relating to its verification as to whether the rights of the defence and the right to effective judicial protection were sufficiently guaranteed by the United States, United Kingdom and French authorities. Third, the Council also failed to examine the merits of the reasons given in the light of the observations and any exculpatory evidence submitted by the applicant, as evidenced by the lack of any reference to those observations or that evidence in the statements of reasons for the contested measures. Fourth, the applicant takes the view that its rights of defence and its right to effective judicial protection were also infringed by the Council’s flagrant disregard of the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788).

198    As to the first complaint, it is settled case-law that, where sufficiently precise information has been disclosed enabling the entity subject to a restrictive measure properly to state its point of view regarding the evidence adduced against it by the Council, the principle of observance of the rights of the defence does not mean that that institution is obliged spontaneously to grant access to the documents in its file. It is only on the request of the party concerned that the Council is required to provide access to all non-confidential official documents concerning the measure at issue (see judgment of 24 November 2021, LTTE v Council, T‑160/19, not published, EU:T:2021:817, paragraph 367 and the case-law cited).

199    It should be noted, as a preliminary point, that, in response to a question put by the Court, the applicant withdrew that first complaint in so far as it related to the first set of contested measures, formal note of which was made in the minutes of the hearing.

200    As regards the second and third sets of contested measures, it may be found, first, that sufficiently precise information was disclosed to the applicant as regards the evidence relied on for the purposes of retaining its name on the lists at issue in the statements of reasons relating to those measures, which, moreover, the applicant does not dispute as such.

201    It is apparent, second, from the case file and from the applicant’s replies to a question put by the Court that the applicant made multiple requests to the Council prior to the adoption of the second and third sets of contested measures, by letters of 15 March, 28 May and 25 November 2021, for access to all the documents relating to the listing at issue and, in particular, the evidence on which the Council relied. It is also apparent that the Council replied to those requests by letters of 30 March, 19 May and 20 July 2021 and of 4 February 2022. In particular, the Council appended to its letter of 30 March 2021 unclassified documents, consisting of an ‘open source report’ providing all available data relating to the 2017 incident relied on by the United States authorities, including, in particular, a link to the source of the data in question, a public opinion from the United States Federal Register relating to the review carried out by the United States authorities in 2019 and data from the United States State Department’s administrative file relating to the incidents identified by the United States authorities during their 2013 review which preceded that conducted in 2019. The Council also states, in its letter of 4 February 2022, replying to the applicant’s request of 25 November 2021, that it had replied to that request by its previous letters and had disclosed the relevant documents relating to the factors taken into account for the purposes of retaining the applicant’s name on the lists at issue.

202    It follows that the first complaint that the Council failed to disclose to the applicant the evidence on which the United States authorities relied must be rejected as regards the second and third sets of contested measures.

203    As regards the second complaint, it may be noted that, as regards the decisions of the United States and the United Kingdom, that complaint is closely linked to that relied on in support of the plea alleging infringement of Article 1(4) of Common Position 2001/931, claiming that the Council failed to verify whether those decisions were adopted in compliance with the rights of the defence and the right to effective judicial protection. Since that complaint has been upheld as regards the United States decisions (see paragraph 94 above), the present complaint should, as a consequence, be upheld, inasmuch as it criticises the Council for failing to disclose to the applicant the relevant information arising from its verification relating to the United States authorities. However, in so far as that complaint was rejected in relation to the decisions of the Home Secretary (see paragraphs 47, 65, 66 and 95 above), the present complaint must be rejected inasmuch as it relates to those decisions.

204    As regards the French decisions, there is no need to rule on the complaint at issue, as a ruling can be given on the present action without taking these into account (see paragraph 163 above).

205    As to the third complaint, relating to the failure to examine the observations and exculpatory evidence submitted by the applicant, this is essentially indissociable from the plea alleging that the Council failed to carry out the review required by Article 1(6) of Common Position 2001/931, which has been rejected (see paragraph 163 above).

206    As to the fourth complaint, claiming that the Council failed to have regard to the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788), it should be noted, first of all, that that judgment was set aside by the judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316). It follows that only the first set of contested measures is concerned by the infringement at issue, since the second and third sets of contested measures were adopted after the Court of Justice’s judgment annulling the decision.

207    It should next be recalled that Article 266 TFEU provides that an institution whose act has been declared void is to be required to take the necessary measures to comply with the judgment annulling that act. That obligation is incumbent on that institution as soon as the judgment annulling a measure is delivered where it annuls decisions – as in the present case, since the measures annulled by the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788) include several decisions – unlike judgments annulling regulations which, pursuant to the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union, take effect only on expiry of the period for bringing an appeal or, in the event of an appeal, on the dismissal of that appeal (see, to that effect, judgment of 21 February 2018, Klyuyev v Council, T‑731/15, EU:T:2018:90, paragraphs 259 to 262 and the case-law cited).

208    More specifically, under Article 266 TFEU, a finding of illegality emerging from the grounds of a judgment annulling a measure requires the institution which adopted the measure to eliminate that illegality in the measure intended to replace the annulled measure. However, that requirement may also, in so far as it relates to a provision of a specific content in a given matter, have other consequences for that institution, including the exclusion from the new texts to be adopted after the judgment annulling the provision of any provision having the same content as that found to be unlawful (see, to that effect, judgment of 26 April 1988, Asteris and Others v Commission, 97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraphs 28 and 29).

209    Thus, on the date of adoption of the first set of contested measures, in order to comply with its obligations under Article 266 TFEU, if it intended to retain the applicant’s name on the lists at issue, the Council was required to adopt a re-listing measure in accordance with the grounds of the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788). Such an obligation was imposed on the Council, particularly in the light of the type of measure concerned in the present case, the effects of which are limited to a defined period of time meaning that the Council was not required to replace the annulled measure in respect of the period concerned (see, to that effect, judgment of 26 April 1988, Asteris and Others v Commission, 97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraph 29) and which, moreover, as regards the review of the ongoing risk of terrorist involvement under Article 1(6) of Common Position 2001/931, are often characterised by the reproduction in subsequent measures of the grounds set out in previous measures,  as updated where necessary. Without that obligation, the annulment ordered by the Courts of the European Union would not prevent the repetition in subsequent measures of grounds vitiated by illegality (see, to that effect, judgment of 14 March 2017, Bank Tejarat v Council, T‑346/15, not published, EU:T:2017:164, paragraph 31) and would thus be deprived of any effectiveness.

210    In the present case, the Council reproduced in the first set of contested measures the same grounds as those on which it relied in the measures which had been censured by the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788). Admittedly, the Council has brought an appeal against that judgment. However, in so far as concerns the effects of annulment, by the Court, of the contested decisions, that appeal had no suspensory effect and was not accompanied by an application, that it was open to the Council to submit, seeking suspension of the effects of the judgment annulling the measure at issue in that case. Such a refusal by the Council to draw the appropriate conclusions from res judicata is liable to undermine the confidence which litigants place in compliance with judicial decisions.

211    The Council’s failure to comply with its obligations under Article 266 TFEU cannot, however, give rise to the annulment of the first set of contested measures in the present case. As has been stated in paragraph 206 above, the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788) was set aside by the judgment of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316). Having regard to the retroactive nature of that annulment by the Court of Justice, the legality of the first set of contested measures can no longer be challenged on the basis of an infringement by the Council of the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788) (see, to that effect, order of 14 April 2014, Manufacturing Support & Procurement Kala Naft v Council, T‑263/12, not published, EU:T:2014:228, paragraph 37). The fourth complaint must therefore be rejected.

212    However, despite the rejection of that fourth complaint, the fact remains that, at the time of the adoption of the first set of contested measures, the Council was required to draw the appropriate conclusions from the illegalities found by the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788), by not reproducing the grounds vitiated by those unlawful acts in the statements of reasons. The applicant could therefore believe that it was justified in bringing the present action, which must be taken into account in the determination of costs.

213    It follows that the present plea must be upheld only in so far as it claims that the Council failed to disclose to the applicant the relevant information relating to its verification of compliance with the rights of the defence and the right to effective judicial protection by the United States authorities.

H.      Conclusion

214    It follows from all the foregoing that the present action must be dismissed. The fact that the pleas alleging infringement of Article 1(4) of Common Position 2001/931 are in part well founded, infringement of the obligation to state reasons and infringement of the rights of the defence and of the right to effective judicial protection cannot lead to the annulment of the contested measures. The corresponding unlawful acts, whether these concern the decisions of the United States authorities of 1997 and 2001 or the August 2014 incident attributed to the PKK, do not call into question the Council’s assessment in the contested measures relating to the ongoing risk of terrorist involvement on the part of the PKK, which remains validly based on the continued application of the Home Secretary’s order of 2001 and, as the case may be, on other incidents which occurred in 2014, 2017 and 2020 (see paragraphs 149, 152 and 156 above).

 Costs

215    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

216    Furthermore, under Article 135(2) of the Rules of Procedure, the Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if that party has made the opposite party incur costs which the Court holds to be unreasonable or vexatious.

217    According to the case-law, Article 135(2) of the Rules of Procedure must be applied where an EU institution, by its conduct, encouraged the dispute to arise (see, to that effect, judgment of 22 May 2019, Ertico – ITS Europe v Commission, T‑604/15, EU:T:2019:348, paragraph 182 and the case-law cited). In the present case, as is clear from paragraph 210 above, the Council’s failure to comply with its obligation to draw the consequences of the illegalities found by the judgment of 15 November 2018, PKK v Council (T‑316/14, EU:T:2018:788), when adopting the first set of contested measures may have led the applicant to bring the present action.

218    Thus, it is a fair assessment of all the circumstances to order the applicant and the Council each to bear their own costs.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders each party to bear its own costs.

Delivered in open court in Luxembourg on 14 December 2022.

Table of contents

I. Background to the dispute and developments in the course of the proceedings

II. Forms of order sought

III. Law

A. The first plea in law: infringement of the principle of legal certainty and of Article 1(2) of Common Position 2001/931 or of Article 2(3) of Regulation No 2580/2001

B. The third plea: infringement of Article 1(4) of Common Position 2001/931

1. The United Kingdom decision

(a) Classification of the Home Secretary as a ‘competent authority’

(b) ‘Precise information or material in the relevant file which indicates that a decision has been taken by a competent authority’

(c) The date of the terrorist acts on the basis of which the PKK was proscribed by the Home Secretary

2. The United States decisions

C. The second plea in law, alleging infringement of Article 1(3) of Common Position 2001/931

1. The argument that the aims referred to in Article 1(3) of Common Position 2001/931 should be interpreted in the light of legitimate armed conflict for the self-determination of the Kurdish people

2. The challenge as to the terrorist nature of the aims pursued by some of the acts attributed to the applicant

D. The fourth plea in law, alleging infringement of Article 1(6) of Common Position 2001/931

E. The fifth plea in law, alleging infringement of the principle of proportionality

F. The sixth plea in law, alleging breach of the obligation to state reasons

G. The seventh plea, alleging infringement of the rights of the defence and the right to effective judicial protection

H. Conclusion

Costs

*      Language of the case: English.

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