CJEU - Joined Cases C 478/11 P to C 482/11 P / Opinion

Gbagbo, Koné, Boni-Claverie, Djédjé and N’Guessan v Council of the European Union
Deciding body type
Court of Justice of the European Union
Deciding body
Opinion of Advocate General
Decision date
ECLI (European case law identifier)
  • CJEU - Joined Cases C 478/11 P to C 482/11 P / Opinion
    Key facts of the case:

    Appeal — Common foreign and security policy — Restrictive measures adopted against persons and entities — Sixth paragraph of Article 263 TFEU — Period allowed for commencing proceedings — Force majeure — Armed conflict.

    Outcome of the case:

    In the light of the foregoing considerations, I propose that the Court should:

    Uphold the second ground of the appeal, and consequently:

    (1) set aside the orders of the General Court of 13 July 2011 which dismissed the applications lodged under Cases T-/348/11 to T-352/11;

    (2) refer the proceedings back to the General Court for a decision on the admissibility of the applications, after hearing representations from the parties pursuant to Article 113 of the Rules of Procedure of the General Court;

    (3) order the costs to be reserved.

  • Paragraphs referring to EU Charter

    47) Needless to say, these are measures that concern, at least prima facie, a fundamental right of the appellants, such as the right to property, guaranteed to ‘everyone’ by Article 17(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), ( 18 ) regardless of whether they may also affect other rights and legal interests.


    50) This last consideration must be applied rigorously to the right to judicial protection. Indeed, through that application, it is clear that the parties concerned must, in any event, enjoy the fundamental right to effective judicial protection of the rights and freedoms involved; this is a fundamental right which Article 47 of the Charter confers on ‘everyone’ against possible violations attributable to the public power of the European Union.


    72) This last point determines the meaning of the provision within the Union’s system of legal remedies when dealing with challenges by individuals to acts that concern them directly and individually. Since the Union is clearly a community based on the rule of law, ( 30 ) that system must respond to the demands inherent in access to justice, as a necessary part of the right to effective judicial protection, now guaranteed by Article 47 of the Charter.


    85) Given the seriousness for the parties concerned of the consequence that inevitably follows from the immediate dismissal ordered by the General Court, I consider that, having regard to the particular circumstances of the case, an interpretation and application of the Rules of Procedure of the General Court more suited in its outcome to the requirements of the right to judicial protection guaranteed by Article 47 of the Charter ought to have been imposed.


    91) In my opinion, this ground alone is sufficient to uphold these appeals; not so much because the General Court did not allow the contested acts to be challenged, as because it did not go as far as it could have in order to afford the appellants the opportunity to present the strongest defence possible, given the circumstances of the case, as to the timeliness of their applications. In purely procedural terms, the General Court used Article111 of the Rules of Procedure to pave a way for deliberating on an absolute bar to proceeding, even though this should have been dealt with under Article 113 of the Rules, as is required by Article 47 of the Charter.