The General Court’s judgment in Case T-572/11 Samir Hassan v Council EU:T:2014:682 is interesting in a number of respects but I’ll concentrate on just one issue that it deals with: when can an application be amended to take account of amendments or repeals of the act the annulment of which is sought?
What happened was this. Mr Samir Hassan from Syria sought, in 2011, the annulment of a Council decision and an implementing regulation imposing sanctions in respect of Syria. In his reply in 2012 the applicant amended his application to take account of changes made to the measures which concerned him. Then in 2013 the applicant sought to change his application to include the annulment of four additional measures adopted in 2012 and 2013.
The Court held that the applicant could indeed amend his application to take account of most of the changes after the original application has been lodged.
The Court recalls that when a measure which is the object of an annulment action is replaced, during the course of the proceedings, by a new measure which has the same object as the original one, the new measure is to be considered to represent a new situation which allows the applicant to amend his application. It would not be conducive to the proper administration of justice to require the applicant to commence fresh proceedings. It would also be unfair to allow the institution that had adopted the original measure to change it and at the same time prevent the applicant from including the subsequent measures in the action (Case T-256/07 People’s Mojahedin Organization of Iran v Council, EU:T:2008:461 paragraph 46 and Case T-110/12 Iranian Offshore Engineering and Construction v Council, EU:T:2013:411, paragraph 16).
The Court also recalls that the request to amend the application must be made within the two month deadline laid down in Article 263 (6) TFEU. That deadline is a matter of public policy (Case C-229/05 P PKK and KNK v Council, EU:C:2007:32 paragraph 101). The Court must check that the deadline has been met (Case T-110/12 Iranian Offshore Engineering and Construction v Council, EU:T:2013:411, paragraph 17).
The two month deadline begins to run, in the case of restrictive measures resulting from sanctions, only either from the date of communication of the measure to the individual concerned or if that person’s address is unknown from the date of publication of a notice in the Official Journal (Joined Cases C-478/11 P to C-482/11 P Gbagbo and others v Council, EU:C:2013:258 paragraphs 59 to 62).
When the deadline begins to run from publication, according to Article 102 (1) of the Rules of Procedure of the General Court, the deadline actually starts from the fourteenth day following the date of publication in the OJ. And according to Article 102 (2), those deadlines are extended by 10 days of travel time.
In this particular case, some of the measures were communicated to the applicant individually while others were not.
The Court recalled that the Council is not free to choose whether to communicate them individually or whether to just publish a notice in the OJ. The Court recalls that the Court of Justice held in Joined Cases C-478/11 P to C-482/11 P Gbagbo and others v Council, EU:C:2013:258 paragraph 61 that publication of a notice in the OJ is only permissible in cases where individual communication to the person concerned is impossible.
Consequently, if the request for amendment of the application concerns a measure that has not been communicated individually to the applicant when the Council knows that person’s address, the deadline for introducing the request does not run and the request is not out of time (Joined Cases T-35/10 and T-7/11 Bank Melli Iran v Council, EU:T:2013:397 paragraph 59 and Case T-8/11 Bank Kargoshaei and others v Council EU:T:2013:470 paragraph 44).
Thus, the application to amend the application was brought in time in the case of the measure that was not communicated to the applicant.
As for the measures that were communicated to the applicant individually, the application was held to be out of time in respect of one of the measures (by just a couple of days) and in time for the others.