ECLI:EU:C:2026:694

Gesamter Gesetzestext

Provisional text

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 3 September 2026 (1)

Case C‑345/25 [Grixta] (i)

CK, acting as agent for CD

Capital Resources Limited

Dipartiment tal-Litigazzjoni tal-Istat tal-Libja in rappreżentanza tal-Istat tal-Libja,

SM,

(Request for a preliminary ruling from the Qorti tal-Appell (Court of Appeal, Malta))

( Reference for a preliminary ruling – Judicial cooperation in civil and commercial matters – Regulation (EC) No 864/2007 – Scope – Article 1(1) – Concept of ‘civil and commercial matters’ – Action by a third country before the courts of a Member State seeking a declaration that the assets held by one of its deceased nationals in his or her name or in the name of third parties, situated on the territory of that Member State, had been obtained unlawfully and must therefore be returned to that third country – Regulation (EU) 2016/44 – Freezing of funds – EU public policy )

I. Introduction

1. This request for a preliminary ruling concerns the interpretation of Article 1, Article 4(1) and Article 10(1) of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II). (2)

2. The request has been made in proceedings between the Dipartiment tal-Litigazzjoni tal-Istat tal-Libja in rappreżentanza tal-Istat tal-Libja (Litigation Department of the State of Libya, representing the State of Libya), (3) and SM and SP, attorneys ad litem representing the unknown heirs of Mutassim Qadhafi; (4) CK, special agent of CD, mother of the deceased, who is one of the presumed heirs of Mutassim Qadhafi; and Capital Resources Limited, a company based in Malta. The State of Libya seeks a declaration that the assets of Mutassim Qadhafi held in Malta, in his own name or in the name of third parties, are being held in breach of Libyan law and that those assets must be returned to the State of Libya.

3. I will explain what leads me to question the admissibility of the request for a preliminary ruling and, in the alternative, to consider that the action brought by the State of Libya does not fall within the scope of the Rome II Regulation.

II. Legal context

A. Restrictive measures taken in view of the situation in Libya

1. International law: Security Council resolutions

4. In its latest resolution concerning the situation in Libya, namely Resolution 2819 (2026) of 14 April 2026, the United Nations Security Council (‘the Security Council’) recalled:

– the arms embargo, travel ban, assets freeze and measures concerning illicit oil exports, which were imposed and modified by Resolutions 1970 (2011) and 2146 (2014) and modified by subsequent resolutions, including Resolutions 2441 (2018), 2509 (2020), 2526 (2020), 2571 (2021), 2664 (2022), 2701 (2023) and 2769 (2025);

– resolution 2616 (2021) of 22 December 2021 on maintaining international peace and security; and

– the extension of the mandate of the Panel of Experts on Libya, (5) established by paragraph 24 of resolution 1973 (2011), which was modified by subsequent resolutions, most recently on 15 May 2026 by resolution 2769 (2025). (6)

5. Pursuant to paragraphs 15 and 17 of Security Council Resolution 1970 (2011) of 26 February 2011, the individuals listed in Annex I thereto and the individuals or entities listed in Annex II thereto are subject, respectively, to a travel ban and an asset freeze. The name of Mutassim Qadhafi appears in those annexes with these details: ‘National Security Adviser. Son of Muammar Qadhafi. [(7)]. Closeness of association with regime’.

6. Paragraph 18 of that resolution, which is reproduced, in essence, in subsequent resolutions, (8) reads as follows:

‘[The Security Council expresses] its intention to ensure that assets frozen pursuant to paragraph 17 shall at a later stage be made available to and for the benefit of the people of the Libyan Arab Jamahiriya.’

7. Paragraph 24 of that resolution establishes a sanctions committee, which is a committee of the Security Council consisting of all its members and whose tasks are specified therein.

2. European Union law: Regulation 2016/44

8. Resolution 1970 (2011) was implemented in the European Union by Decision 2011/137/CFSP (9) and Regulation (EU) No 204/2011, (10) which were replaced by Decision (CFSP) 2015/1333 (11) and Regulation 2016/44, respectively.

9. Article 1(b) of Regulation 2016/44 defines ‘freezing of funds’ as ‘preventing any move, transfer, alteration or use of, access to, or dealing with funds in any way that would result in any change in their volume, amount, location, ownership, possession, character, destination or other change that would enable the funds to be used, including portfolio management’.

10. According to Article 5(1) and (2) of that regulation:

‘1. All funds and economic resources belonging to, owned, held or controlled by the natural or legal persons, entities and bodies listed in Annexes II and III shall be frozen.

2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of the natural or legal persons, entities or bodies listed in Annexes II and III.’

11. Article 6(1) of that regulation provides:

‘Annex II shall include the natural or legal persons, entities and bodies designated by the Security Council or by the Sanctions Committee in accordance with paragraph 22 of [Resolution] 1970 (2011) …’

12. Annex II contains the name ‘Mutassim Qadhafi’. (12)

13. Articles 8 to 11 and 13 and 14 of Regulation 2016/44 govern, by way of derogation from Article 5 thereof, the conditions in which the competent authorities of the Member States listed in Annex IV to that regulation (13) may authorise the release, use or making available of certain frozen funds or economic resources.

14. Article 19 of Regulation 2016/44 provides:

‘Member States and the [European] Commission shall immediately inform each other of the measures taken under this Regulation and shall supply each other with any other relevant information at their disposal in connection with this Regulation, in particular information in respect of violation and enforcement problems and judgments handed down by national courts.’

B. Conflict of laws: the Rome II Regulation

15. Recitals 1, 6 and 7 of the Rome II Regulation state:

‘(1) The [Union] has set itself the objective of maintaining and developing an area of freedom, security and justice. For the progressive establishment of such an area, the [Union] is to adopt measures relating to judicial cooperation in civil matters with a cross-border impact to the extent necessary for the proper functioning of the internal market.

…

(6) The proper functioning of the internal market creates a need, in order to improve the predictability of the outcome of litigation, certainty as to the law applicable and the free movement of judgments, for the conflict-of-law rules in the Member States to designate the same national law irrespective of the country of the court in which an action is brought.

(7) The substantive scope and the provisions of this Regulation should be consistent with Council Regulation (EC) No 44/2001 [(14)] and the instruments dealing with the law applicable to contractual obligations.’

16. Article 1 of the Rome II Regulation, entitled ‘Scope’, provides in paragraph 1:

‘This Regulation shall apply, in situations involving a conflict of laws, to non-contractual obligations in civil and commercial matters. It shall not apply, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).’

17. Under Article 3 of that regulation, entitled ‘Universal application’:

‘Any law specified by this Regulation shall be applied whether or not it is the law of a Member State.’

C. Libyan law

1. Law No 3 of 1986

18. Law No 3 of 1986, known as ‘From where have you obtained this?’, concerns unlawful gains or benefits that derive, inter alia, from favouritism, threat or breach of the law, or from abuse of office, profession, status or influence, or that are of unknown source or cause, or that are not commensurate with the person’s legitimate resources.

19. Articles 1 to 3 and Article 5 of that law define the offences, while Articles 4 and 5 lay down the related penalties.

20. Under Article 6 of that law:

‘The court shall order the restitution of funds which are proved to have been obtained unlawfully and the Public Treasury shall have a right to those funds, which shall be collected by the administrative means prescribed for the collection of public funds.’

2. Law No 10 of 2002

21. Law No 10 of 2002, known as ‘the Purge Law’, is intended to ensure that public officials and employees of the State, including members of the nation’s armed forces, do not use or abuse their position in order to make an unlawful gain of public funds or from public funds.

22. Article 6 of that law provides:

‘Funds or commissions shall be deemed stolen or illicitly gained if obtained by any of the aforementioned entities that are subject to the provisions of this law, whether for him or herself or a third person, by means of abusing his or her position or authority or by nepotism, threat or influence, whether directly or indirectly, or if the gain is generated through currency or commodities trading or other activities prohibited by law. Any increase in the disclosure of the financial position after gaining a position or status shall be deemed to constitute theft and an unlawful gain when that increase is not commensurate with any of the aforementioned entity’s sources of funding or those of his or her spouse or minor children and in respect of which he or she is unable to prove the lawful source. Any money or material advantage shall be deemed stolen or unlawfully gained when it is obtained by [the means described in] the aforementioned provisions of the law.’

23. The referring court explains that ‘anyone subject to the Purge Law must submit, within the prescribed time frames, a financial disclosure for himself or herself, his or her spouse and his or her minor children. Those disclosures are examined by the “Purification Committees” that are also bound to examine complaints regarding unlawful gains, conduct further investigations and finally produce a report on the results of the investigation, the action taken and the reasons for it’ (Articles 7 and 8 of that law).

24. In accordance with Article 9 of that law, in case of a suspicion of unlawful gain or the concealment of information, the Committee must refer the matter to the Public Prosecutor’s Office for further investigation and action.

25. Article 11(3) of Law No 10 of 2002 provides:

‘Death shall not prevent the restitution of money obtained from illicit gain, even after that money has been relinquished to the heirs if restitution is established by a decision issued by the People’s Court’.

26. Article 12 of that law provides:

‘The Public Prosecutor’s Office may request to include in the civil part of the lawsuit the spouse and the children or anyone else whom the Office finds benefitted from illicit gain to issue a verdict of restitution, which shall be final. The restitution of funds shall be equal to the amount obtained as an illicit gain. The Public Prosecutor’s Office may request the inclusion of any person who collaborated with the accused person in obtaining the illicit gain or who colluded in hiding the proceeds. A verdict of restitution shall be issued and shall include all the parties concerned.’

III. The facts of the dispute in the main proceedings and the questions referred for a preliminary ruling

27. Mutassim Qadhafi was the fourth son of the former Libyan leader Muammar Qadhafi and CD.

28. After graduating from a military academy, he was appointed as an officer in the Libyan army, before being promoted to three different ranks by 2009.

29. Between 2003 and 2004, Mutassim Qadhafi set up a company in Malta with the name Mezen International Limited.

30. He received his last salary from the Libyan army in September 2005, amounting to 356 Libyan dinar (LYD) (approximately EUR 220);

31. From September or October 2005, he was appointed National Security Adviser and was reportedly paid by the General People’s Committee for Finance. He held that political and non-military office in 2006 and 2007, and again in early 2010. He resigned from it owing to a disagreement with his father.

32. On 28 June 2010, Capital Resources was registered in Malta. Its sole shareholder, director, legal and judicial representative and secretary was the same person as the sole shareholder, director and secretary of Mezen International. All the assets of that company were transferred to Capital Resources.

33. Capital Resources held six bank accounts with the Bank of Valletta. The funds held in the accounts, which are still open, amount to several tens of millions of euros, several tens of millions of United States dollars (USD) and several million British pounds (GBP), or a total of approximately EUR 90 million.

34. By Resolution 1970 (2011), Mutassim Qadhafi, inter alia, was subjected to a travel ban and asset freeze. According to a representative of the Bord ta’ Sorveljanza dwar is-Sanzjonijiet fi ħdan il-Ministeru għall-Affarijiet Barranin u Ewropej (Sanctions Monitoring Board within the Ministry of Foreign and European Affairs, Malta), those assets consist of amounts held in accounts opened in the name of Capital Resources.

35. Following Mutassim Qadhafi’s death on 20 October 2011, the Libyan Government took steps in 2012 to identify and recover funds, financial assets and other economic resources that had been unlawfully acquired or held by persons directly or indirectly associated with the leadership of the former Libyan regime.

36. On 17 September 2014, the State of Libya brought a civil action before the Prim’Awla tal-Qorti Ċivili, (First Hall of the Civil Court, Malta), (15) against the presumed heirs of Mutassim Qadhafi, including CD, his mother, and Capital Resources, seeking a declaration that the assets belonging to Mutassim Qadhafi, in his own name or in the name of third parties, located in Malta, were being held in breach of Libyan law and that their restitution to that State should therefore be ordered.

37. CD and Capital Resources, represented by CK, argued, inter alia, that, under Maltese law, the Maltese courts did not have jurisdiction to hear those applications, based on criminal law, and that the action was time-barred.

38. By a judgment of 23 October 2017, (16) the court of first instance dismissed the plea of lack of jurisdiction.

39. By a ‘final’ judgment of 28 June 2022, (17) that court also rejected the plea of limitation as well as other pleas not yet decided, granted all the claims of the State of Libya in its application and ordered the restitution to that State of the assets held in the name of Mutassim Qadhafi or in the name of third parties and located in Malta. The judgment is based on Libyan legislation, namely Law No 3 of 1986 and Law No 10 of 2002.

40. On 21 July 2022, CK lodged an appeal against those two judgments before the Qorti tal-Appell (Court of Appeal, Malta), which is the referring court.

41. It is apparent from the documents in the file sent to the Court that the first judgment, namely that of 23 October 2017, was upheld by a judgment of 3 March 2025. That judgment is based on Article 742(1)(b) and (c) of the Kodiċi ta’ Organizzazzjoni u Proċedura Ċivili (Code of Organisation and Civil Procedure) [Chapter 12 of the tal-Liġijiet ta’ Malta (Laws of Malta)], which confers jurisdiction on the Maltese courts in proceedings against a defendant domiciled, residing or located in Malta or in proceedings in respect of property located in Malta.

42. In examining the appeal lodged against the second judgment, namely that of 28 June 2022, the referring court considers it necessary to determine, as a preliminary issue, whether the Rome II Regulation applies in the present case. The referring court expresses doubts solely as to whether the action before it is a civil or commercial matter, within the meaning of Article 1(1) of that regulation, and not an administrative matter under that same provision.

43. In those circumstances, the Qorti tal-Appell (Court of Appeal) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does the notion of “civil and commercial matters” in Article 1 of [the Rome II Regulation] cover a claim such as that submitted by the State of Libya pursuant to the foregoing laws in order to recover assets of the deceased [Mutassim Qadhafi] that are present in Malta?

(2) Does the exception relating to administrative matters referred to in Article 1 of [the Rome II Regulation] cover a claim such as that submitted by the State of Libya pursuant to the foregoing laws in order to recover assets of the deceased [Mutassim Qadhafi] that are present in Malta?

(3) If it is established that [the Rome II Regulation] applies to the present case, what is the distinction between the obligation arising out of a tort/delict (Article 4(1) of the regulation) and unjust enrichment arising out of a tort/delict (Article 10(1) of the regulation) in a case such as that at issue before this Court?’

44. CK, the representative of the State of Libya, the German Government and the Commission submitted written observations. Those parties, together with SM and the Maltese Government, attended the hearing on 13 May 2026, during which they answered the questions put to them by the Court for oral answer.

IV. Analysis

45. As a preliminary point, the Commission, in its written observations to the Court, stated, in essence, that no decision of the referring court should have any effect on the freezing of Mutassim Qadhafi’s funds, since that freezing constitutes the implementation in the European Union of Security Council Resolution 1970 (2011) and is covered by Regulation 2016/44. The first of the Court’s questions for oral answer concerned the implications of that information, particularly with respect to the powers of the national court.

46. The Commission argued at the hearing that institutions, like the courts, have an obligation to ensure that funds remain frozen until the Security Council decides otherwise and changes its current position on the final destination and use of the assets for the Libyan people. According to the Commission, Regulation 2016/44 precludes any decision that would result in a change of ownership of the assets. I consider it appropriate therefore to make an assessment of the outcome of the dispute in the main proceedings, and, consequently, the admissibility of the request for a preliminary ruling.

47. First, I note that, since Mutassim Qadhafi’s death on 20 October 2011 became public knowledge, his name has not been removed from the list of persons whose assets are frozen, (18) established on 26 February 2011. Therefore, his assets have not been transferred to the successors in title of the deceased in the present case.

A. Admissibility of the request for a preliminary ruling

48. In accordance with settled case-law, in proceedings under Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of EU law, the Court is, in principle, bound to give a ruling. (19)

49. Nevertheless, the Court must examine the circumstances in which cases are referred to it by the national court, in order to assess whether it has jurisdiction or whether the request submitted to it is admissible. (20)

50. The Court may, in particular, find it necessary to examine whether the provisions of EU law to which the questions referred relate are applicable to the dispute in the main proceedings. If that is not the case, those provisions are irrelevant in resolving that dispute and the questions referred for a preliminary ruling are not necessary to enable the referring court to give judgment, with the result that those questions must be held to be inadmissible. (21)

51. In the present case, it is important to ascertain whether the application made before the court of a Member State by a third country, in this case, the State of Libya, for the restitution of funds held by a bank in Malta, which belonged to Mutassim Qadhafi through Capital Resources, registered in Malta, of which he was the sole shareholder, may be examined under the rules established by the Rome II Regulation.

52. By judgment of 28 June 2022, the Prim’Awla tal-Qorti Ċivili (First Hall of the Civil Court), granted that restitution claim, in full knowledge of Resolutions 1970 (2011) (22) and 1973 (2011), as well as legal opinions 69 and 116 delivered in accordance with Maltese law following those resolutions. (23) Furthermore, it is only specified in the final paragraph of that judgment, which precedes the operative part, ‘that, for all intents and purposes, with regard to the second claim and in view of the sanctions against Libya, this court makes it clear that the restitution to the State of Libya of the aforementioned assets which were held by [Mutassim] Qadhafi in his own name or in the name of third parties and which are located in Malta will ONLY take place once it has been established that the State of Malta will not be in breach of any international obligation of the United Nations or any other obligation of the European Union’. (24)

53. At the hearing, CK, the representative of the State of Libya and the Maltese Government contended that the judgment of 28 June 2022 had no impact on the freezing of funds owing to the subject matter of the dispute and the reservations expressed in that judgment. (25) The parties to the dispute in the main proceedings also stated that there was a consensus among them on the necessity for an interpretation of the Rome II Regulation.

54. It is true that the action brought by the State of Libya, in its first part, seeks to ‘establish that the assets of the deceased held in Malta, in his own name or in the name of third parties, are being held in breach of Libyan law’, with the State of Libya arguing that those assets constitute an illicit gain. (26) However, as the referring court points out, the restitution of the funds is the ‘ultimate objective’ of the proceedings and was ordered by the judgment of 28 June 2022 challenged on appeal before that court.

55. In my view, therefore, the Commission is correct to point to the provisions of Regulation 2016/44, which is cited neither in that judgment nor by the referring court. I would also note that the questions of that court, hearing the appeal against that judgment, do not concern that regulation or, specifically, the definition of the concept of ‘freezing of funds’.

56. However, the freezing of funds (27) is an action aimed at preventing, particularly as regards the case in the main proceedings, any movement or transfer of funds or any access to them that would result in a change in their ownership or possession. The objective is to limit as much as possible the transactions that may be carried out with frozen funds, (28) even if they do not have the effect of removing assets from the debtor’s estate. (29) In the judgment of 12 March 2026, EM System, (30) the Court recalled the principle that the measure freezing the funds cannot be lifted by a national court until that measure has been withdrawn. (31)

57. In addition, Articles 8 to 11 and 13 and 14 of Regulation 2016/44 (32) govern, by way of derogation from Article 5 of that regulation, the conditions in which the competent authorities of the Member States listed in Annex IV to that regulation (33) may authorise the release, use or making available of certain frozen funds or economic resources. (34) None of those provisions provides for the release of funds on the basis of a judicial decision following the decision to freeze the funds and, a fortiori, a decision finding unlawful enrichment of the designated person, at the request of the State of Libya.

58. Consequently, I share the Commission’s view that, ‘if an organ of a State – such as the courts of the Member States – were to rule on the transfer to the Libyan people of the frozen assets without a specific decision of the [Security Council], it would be in breach of the obligations arising from those resolutions’ and ‘no decision of the referring court should have any effect on the implementation and application of Decision [2015/1333] and Regulation … 2016/44, in particular the freezing of the funds of [Mutassim Qadhafi], which constitutes the implementation of Resolution 1970 (2011) in the European Union’.

59. In that regard, the Commission stated at the hearing that, according to the Panel of Experts, the judgment of 28 June 2022 ordering the restitution of the funds to the State of Libya amounts to a breach of the asset freeze. (35) It also recalled the latest resolution 2819 (2026), (36) which maintains that measure. (37)

60. Lastly, the obligation to ensure the effectiveness of the restrictive measures adopted by the European Union is an essential rule in the EU legal order. (38) It should be observed in fact that ‘restrictive measures … against natural or legal persons and groups or non-State entities’ are adopted by the Council of the European Union under Article 215(2) TFEU, in the field of the Common Foreign and Security Policy (CFSP), on the basis of decisions adopted by the Council under Article 29 TEU. They ‘define the approach of the Union to a particular matter of a geographical or thematic nature’. Regulations adopted under Article 215 TFEU relate, in the light of their objectives and content, to those decisions, which determine or define the persons and entities to be subject to the restrictive measures to be adopted, and constitute the instrument giving effect to them at EU level. (39) Compliance with those regulations is essential to achieving the objectives of the CFSP within the EU, as set out in Article 21 TEU. (40) Thus, the provisions of primary or secondary EU law which are of fundamental importance for the legal order established by the Treaties or the accomplishment of the tasks entrusted to the European Union form part of EU public policy. (41) In my view, that is the case with the restrictive measures adopted as a result of the situation in Libya, which are binding on national courts.

61. The question of the public policy nature of restrictive measures is at the heart of two requests for a preliminary ruling currently before the Court concerning the recognition and enforcement of arbitration awards. In his Opinion of 26 February 2026 in Reibel, (42) Advocate General Biondi took a view on the essential character and/or fundamental importance of Regulation (EU) No 833/2014 (43) to the accomplishment of the tasks entrusted to the European Union. He considered that it was necessary and sufficient to find that Article 11(1) of that regulation is part of EU public policy. (44) The same question is posed in general terms in the judgment in Graudu sabiedrība (C‑701/25). (45) Similarly, in his Opinion delivered on 19 March 2026 in the judgment in DNO Yemen, (46) Advocate General Szpunar notes that ‘all the interveners take it as given that Article 2(2) of Regulation [(EU)] No 1352/2014 [, (47) on the effects of the freezing of funds or economic resources,] falls within EU public policy’. (48) In all those cases, the challenge is to define the conditions in which the judicial review must be carried out in the light of EU regulations that implement restrictive measures and that, as a matter of principle, directly produce their effects before the national courts. In the judgments in Graudu sabiedrība (C‑701/25), and in Čiekuri-Shishki (C‑480/24), (49) the Court has been asked to rule on the possibility of attaching conditions to the enforcement of a decision relating to frozen funds. I consider that the determination of a court’s powers and obligations is transposable, irrespective of the proceedings instituted within the area of freedom, security and justice and the regulations adopted on restrictive measures with similar content. In the present case, the key distinguishing feature of the proceedings must be emphasised. They do not involve the potential circumvention of the restrictive measures taken against the persons concerned by the freezing of the funds, which might justify, where appropriate, the deferred execution of a decision until such time as they no longer fall within the scope of the regulation in question. (50)

62. It follows from all the foregoing that national courts do not have jurisdiction to rule on a claim for restitution of frozen funds to the State of Libya, at its request.

63. Consequently, the interpretation of the provisions of the Rome II Regulation referred to in the questions referred for a preliminary ruling is, in my view, not relevant for the resolution of the dispute in the main proceedings.

64. I therefore propose that the Court should rule that this request for a preliminary ruling is inadmissible.

65. However, the Court might not agree with that analysis if it decides that, since a decision on the restitution of frozen funds is prohibited, the examination of the request for a preliminary ruling must be limited to the first part of the action brought by the State of Libya, namely a declaration ‘that the assets of the deceased held in Malta, in his own name or in the name of third parties, are being held in breach of Libyan law’. The interpretation requested by the referring court would thus be aimed solely at taking a decision on the unlawful holding of the frozen funds belonging to Mutassim Qadhafi, without thereby designating any owner or injured person and, therefore, without being able to order their recovery by the injured person, in this case the State of Libya.

66. In that scenario, the Court would have to adopt a position on the nature of the action brought by the State of Libya. In the alternative, therefore, I will examine the various aspects of the answer to that question before deciding whether that action falls within the scope of the Rome II Regulation. That will determine the answers to be proposed to the second and third questions referred for a preliminary ruling.

B. In the alternative, on the nature of the action brought by the State of Libya

67. In the present case, since it was unable to bring criminal proceedings against Mutassim Qadhafi following his death, the State of Libya brought an action for the restitution of frozen funds against his heirs and the company registered in his name, on the ground that the funds were being held in breach of Libyan law. (51)

68. The term ‘restitution’ appears in Article 6 of Law No 3 of 1986 and in Article 12 of Law No 10 of 2002, as well as in Article 11(3) thereof, with regard to the obligations of the heirs of the main perpetrator of the acts giving rise to that restitution.

69. In response to the Court’s question on the nature of the action brought in the main proceedings, the representative of the State of Libya, CK and SM stated that the action concerns a claim for damages by a crime. It is a civil action which may be brought by any victim of a criminal offence. In the opinion of the Maltese Government, the proceedings at issue seek to determine whether the State of Libya is the owner of the disputed assets. According to the Commission, the restitution claim at issue is an action for the confiscation of unlawfully acquired assets.

70. In the first place, I would note that the referring court explains that the State of Libya’s claim covers all the funds held by Mutassim Qadhafi in bank accounts opened in Malta. The State of Libya argues that those funds originate from illicit gains made in breach of Libyan law.

71. The referring court explains that the State of Libya’s claim was granted on the basis of Article 6 of two special laws, namely Law No 10 of 2002 (‘the Purge Law’) and Law No 3 of 1986 (‘From where have you obtained this?’).

72. It points out that, under Law No 10 of 2002, the main action brought against a defendant is criminal in nature, but that, owing to the death of Mutassim Qadhafi, only the provisions concerning the civil consequences that may be drawn by the authority responsible for establishing that a criminal offence has been committed have been invoked before a Maltese court. Those provisions include Article 6 of Law No 3 of 1986, which follows the articles defining the offences and the penalties incurred, and provides that the court must order the restitution of unlawfully obtained funds to the Treasury. Article 12 of Law No 10 of 2002 is also involved, which provides that the public prosecution service may request the inclusion ‘in the civil part of the lawsuit’ (52) of any person concerned for the purpose of ordering the restitution of funds equal to the amount obtained as illicit gains.

73. It follows from those regulations that the decision must be based on a declaration of illicit enrichment, which automatically determines what happens to all the funds in question. It is not a case of assessing compensation for one or more losses incurred.

74. In the second place, it may be inferred therefrom that this is not an action either to determine whether the applicant or the defendant is the owner of the funds in question.

75. In that regard, a question arises, since the Maltese Government considers the dispute to be a claim asserting an ownership right. (53)

76. However, evidence that the State of Libya was the owner of the assets in question is not required to substantiate the claim made under Law No 3 of 1986 and Law No 10 of 2002. The proceedings brought by that State are based on the presumption that it is a victim of assets having been obtained illegally, in breach of the two special laws that it has relied on.

77. That finding is corroborated by the fact that the operative part of the judgment of 28 June 2022, contested before the referring court, has no declaration on the ownership of the assets in question. By contrast, it includes a detailed statement of reasons on the lack of evidence that the assets of Capital Resources were derived from legitimate sources. (54)

78. Lastly, the question whether the funds actually belong to the State of Libya should be determined in proceedings brought solely for that purpose, given the definition of the freezing of funds (55) and its legal framework.

79. In my view, it is in that manner that it is necessary to understand the excerpt from the report of the Panel of Experts of 15 February 2014, (56) which is quoted in the judgment of 23 October 2017 as follows: ‘in paragraph 246 of report [S/2014/106 of the Panel of Experts], it is stated that the frozen assets of these “designated individuals” should remain their personal property and that any transfer to the Government of Libya as a result of an exemption to the asset freeze would be tantamount to an illegal transfer of property. Paragraph 247 of that report states that the Panel of Experts “is aware that large assets have been unlawfully obtained by certain designated individuals and is working hard within its mandate to identify where such assets have been hidden so that they can be properly frozen in accordance with the resolutions. The Panel believes that lawfully owned personal assets do not belong to the Government of Libya unless they can be proved to have been stolen from the Libyan State. The only legal way that this can be achieved is through legal process in a competent court of law … The Panel is very keen to ensure that all assets improperly obtained from Libya by designated individuals are frozen and made available to and for the benefit of the Libyan people, but only by proper legal methods”’. The judgment adds that ‘paragraph 248 [of that] report states that that judicial process may be initiated in two ways, namely (i) by bringing a case in the Libyan courts to establish whether or not the initial transfer of the assets to the individual concerned was legal. If it was found to be illegal, then a confiscation order could be issued and “an international letter of request for mutual legal assistance could be transmitted through the proper channels, requesting the enforcement of the order”, or (ii) a more realistic option would be for the Libyan authorities to bring an action in the courts of the Member State concerned, that is, where the assets are frozen, as in the case of State of Libya v Capitana Seas Limited [(57)], decided by the [High Court of Justice (England & Wales), King’s Bench Division (Commercial Court), United Kingdom]. The report then adds that “once it has been established that the company and its assets are not lawfully part of the estate of a designated individual, because they were acquired in an illegal manner, they automatically fall outside of the asset freeze measures, and ownership can legally be transferred to the Government of Libya”’. (58)

80. A distinction should therefore be made between the assertion of ownership of the funds, which requires evidence that they belonged to the applicant from the outset, and the finding that the assets were obtained unlawfully. In both cases, the subsequent decision to return the frozen funds to the State of Libya (or to confiscate or recover them) (59) should be governed by specific provisions of Regulation 2016/44 (60) or by decisions of the Security Council.

81. In those circumstances, the Court could decide that it has jurisdiction to respond to the request for a preliminary ruling by declaring that, because of the limits set by Article 5(1) of Regulation 2016/44, in conjunction with Article 1(b) thereof, its interpretation will concern the civil action of the State of Libya, which seeks the application of the presumption of unlawfully acquired assets relied on by that State, thus excluding its effects – namely in the absence of evidence to the contrary, the confiscation of the funds held in the name of Mutassim Qadhafi.

82. Therefore, it remains to be determined whether such an action falls under the Rome II Regulation, which requires clarification of the scope of the concept of ‘civil and commercial matters’, within the meaning of Article 1(1) of that regulation.

C. In the alternative, the applicability of the Rome II Regulation

83. By its first question, the referring court seeks to ascertain whether the action brought by the State of Libya falls within the concept of ‘civil and commercial matters’, within the meaning of Article 1(1) of the Rome II Regulation.

1. Preliminary observations

84. First, in principle, it is during the examination of its international jurisdiction under Regulation (EU) No 1215/2012 (61) that the court of a Member State decides whether the dispute before it concerns civil and commercial matters. (62) However, it is not clear from the request for a preliminary ruling or from the file sent to the Court whether the applicability of that regulation has been examined. (63)

85. Nevertheless, that failure to determine international jurisdiction is not such as to call into question the recognition of the judgments given. (64) I therefore consider that the request for a preliminary ruling must be examined by the Court regardless of any consideration of the international jurisdiction of the Maltese courts before which the proceedings have been brought.

86. Second, since, in the present case, the State of Libya asserts rights that are subject to the application of its national law, it should be noted, on the one hand, that the Rome II Regulation does not provide any clarification concerning situations involving third countries, and on the other hand, that Article 3 of that regulation allows the choice of a law that is not that of a Member State.

87. Third, since recital 7 of the Rome II Regulation calls for that regulation to be interpreted in a manner consistent with Regulation No 44/2001, (65) the case-law of the Court relating to the scope of that instrument and of the Brussels Ia Regulation, which succeeded it, must serve as a reference.

88. Fourth, it is apparent from the judgment of 28 June 2022 that the applicability of the Rome II Regulation was examined on the initiative of CK, on behalf of CD and Capital Resources. He argued that, according to Maltese law, which is applicable under that regulation, the action of the State of Libya, which is one of civil liability, is time-barred. (66)

2. The action taken by the State of Libya examined in the light of the interpretation of the concept of ‘civil and commercial matters’

89. The referring court has not explained why, in the light of the case-law of the Court, it has doubts as to the action before it.

90. Admittedly, the Court has not ruled on the interpretation of the concept of ‘civil and commercial matters’, which defines the scope of the Rome II Regulation.

91. However, that regulation offers two useful explanations. It may be stated, at the outset, that the action in the main proceedings is based on the illicit enrichment of Mutassim Qadhafi as a result of his military status. Recital 9 of that regulation is worded as follows: ‘claims arising out of acta iure imperii should include claims against officials who act on behalf of the State and liability for acts of public authorities, including liability of publicly appointed office-holders. Therefore, these matters should be excluded from the scope of this Regulation.’ Subject to verification by the referring court, the acts attributed to Mutassim Qadhafi do not fall within those categories.

92. In addition, recital 7 of the Rome II Regulation (67) argues for seeking an interpretation of that concept, which is found, inter alia, in Article 1(1) of the Brussels Ia Regulation, on the ground that the wording of that article is almost identical to that of Article 1(1) of the Rome II Regulation.

93. It is necessary, therefore, to recall the criteria adopted by the Court in its case-law on the interpretation of the concept of ‘civil and commercial matters’.

94. According to settled case-law, in order to determine whether or not an action is a ‘civil or commercial matter’, the Court is to examine the elements which characterise the nature of the legal relationships between the parties to the dispute or the subject matter thereof or, alternatively, the basis and the detailed rules governing the bringing of the action. (68)

95. The Court has thus held that, although certain actions between a public authority and a person governed by private law may come within the scope of the Brussels Ia Regulation, it is otherwise where the public authority is acting in the exercise of its public powers, (69) which manifests itself by the exercise of powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals. (70)

96. With regard to the dispute in the main proceedings, it should be recalled that the State of Libya brought a civil action against the heirs of Mutassim Qadhafi and Capital Resources before a Maltese court on the basis of special criminal laws, namely Law No 3 of 1986 and Law No 10 of 2002, in respect of unlawful acts allegedly committed by Mutassim Qadhafi.

97. Accordingly, first, it follows from the relevant provisions of those laws, as cited by the referring court, that the action initiated by the State of Libya seeks to protect public interests. (71) Those laws penalise illicit gains earned, in particular, by public officials, including members of the armed forces, (72) in respect of which the State of Libya considers itself an injured party. Therefore, those laws, which require any owner (whether or not they are a natural or legal person (73)) of illicit gains to return them, even in the event of the death of the person responsible, cannot be the basis for an action by private individuals. The legal relationship that exists must thus be characterised as a relationship governed by public law. (74)

98. Second, (75) it is also apparent from those provisions that the action at issue in the main proceedings was brought by the State of Libya exercising powers conferred on it that fall outside the scope of the general law.

99. First, I note that the procedure implemented for the persons covered by Law No 10 of 2002 is predicated on the powers of investigation assigned to a committee on the basis of a presumption of illicit gain. (76) The committee reports any suspicions of unlawful profit to the public prosecution service, (77) which is responsible for the civil part of the criminal action, potentially including the spouse and children of the main perpetrator as well as any other individuals involved in those illicit gains. (78) Such powers may only be exercised by those public authorities. (79)

100. Second, I observe that, as regards the heirs of Mutassim Qadhafi against whom the State of Libya brought its action, the referring court cites Article 11(3) of Law No 10 of 2002, on the basis of which the restitution of illicit funds by the heirs of a deceased offender may be ordered by a Libyan court. However, the case in the main proceedings demonstrates that the restitution claim may be made by the State of Libya before the court of a Member State, without criminal proceedings having been initiated in Libya against Mutassim Qadhafi before his death.

101. In those circumstances, the action brought by the State of Libya is not comparable to a civil claim for damages, as referred to under Article 7(3) of the Brussels Ia Regulation, based on an act giving rise to criminal proceedings, in the court seised of those proceedings which has jurisdiction to entertain civil proceedings, and which any person may bring. (80) I should clarify that, in the case giving rise to the judgment of 21 April 1993, Sonntag, (81) relied on by the State of Libya, the claim for damages was made against the defendant before a criminal court, which granted it following the criminal conviction. (82) In my view, therefore, the right to restitution which gives rise to the action brought in the main proceedings, as exercised by the State of Libya, has been raised in conditions provided only for State authorities.

102. The State of Libya further submits that the transfer to the heirs, in accordance with the principles of civil law, of the deceased’s rights and obligations towards creditors, is a sufficient basis for the action being brought against the heirs, which anyone is entitled to do. First, however, those principles of ordinary civil law are not mentioned in the order for reference. (83) Second, that argument is not sufficient, in my view, to consider that a private individual may bring an action for damages against the heirs of a tortfeasor without the tortfeasor’s guilt or liability having previously been established, a fortiori when the action is brought against the company of which the tortfeasor was the sole shareholder.

103. Lastly, I note that, as regards the beneficiaries of the restitution that may be ordered, the provisions cited by the referring court do not provide for restitution to private individuals. The only provision cited – namely, Article 6 of Law No 3 of 1986, (84) which directly follows the articles defining the offences and the penalties incurred (85) – provides that the Treasury is entitled to funds established as having been unlawfully obtained.

104. For all those reasons, in my view, the action of the State of Libya is based on provisions that manifest the exercise of the powers of a public authority, which excludes that action from the concept of ‘civil and commercial matters’.

105. I therefore propose that the Court should rule that the Rome II Regulation is not applicable and, consequently, not answer the second and third questions referred for a preliminary ruling, which seek an interpretation of other provisions of that regulation.

V. Conclusion

106. In the light of all the foregoing considerations, I propose that the Court should rule that the request for a preliminary ruling made by the Qorti tal-Appell (Court of Appeal, Malta), by decision of 28 April 2025, is inadmissible.

In the alternative, I propose that the Court should answer the questions for a preliminary ruling referred by the Qorti tal-Appell (Court of Appeal) as follows:

Article 1(1) of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)

must be interpreted as meaning that an action, such as that at issue in the main proceedings, which is brought by a third country for the purpose of the restitution of funds held in a Member State, on the ground that they were unlawfully obtained by one of its deceased nationals, and which is based on special laws, conferring on that State powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals, does not fall within the concept of ‘civil and commercial matters’, within the meaning of that provision.

1 Original language: French.

i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

2 OJ 2007 L 199, p. 40; ‘the Rome II Regulation’.

3 ‘The representative of the State of Libya’.

4 [Translator’s note: In the original version of this Opinion, the Advocate General uses the most common French spelling of that name, Muatassim Kadhafi. In this translation of the Opinion, the most common English spelling will be used, Mutassim Qadhafi. For other spellings, see points 5 and 12 of this Opinion.]

5 ‘The Panel of Experts’.

6 This mandate was extended until 15 August 2027 (see paragraph 24 of resolution 2819 (2026)).

7 In the French-language version of Annex II to Council Regulation (EU) 2016/44 of 18 January 2016 concerning restrictive measures in view of the situation in Libya and repealing Regulation (EU) No 204/2011 (OJ 2016 L 12, p. 1), the first name is spelled as follows: Mouammar. [Translator’s note: in the original version of this Opinion, the Advocate General uses the most common French spelling of that name, Mouammar Kadhafi. In this translation of the Opinion, the most common English spelling will be used, Muammar Qadhafi].

8 See, inter alia, in similar terms, paragraph 20 of Security Council Resolution 1973 (2011) of 17 March 2011, as well as the reaffirmation of the Security Council’s intentions in paragraph 14 of Resolution 2701 (2023) of 19 October 2023 and paragraph 13 of Resolution 2769 (2025) of 16 January 2025, which states: ‘[The Security Council emphasises] that assets frozen pursuant to paragraph 17 of resolution 1970 (2011) shall at a later stage be made available to and for the benefit of the Libyan people, further emphasises that the asset freeze measures are intended to be protective, and calls upon all relevant Member States to protect frozen assets for the future benefit of the Libyan people, including by preventing misuse and misappropriation of frozen assets’. In Resolution 2819 (2026), paragraph 13 is supplemented, inter alia, on the measures to be taken by the relevant Member States to preserve the value of frozen assets.

9 Council Decision of 28 February 2011 concerning restrictive measures in view of the situation in Libya (OJ 2011 L 58, p. 53).

10 Council Regulation of 2 March 2011 concerning restrictive measures in view of the situation in Libya (OJ 2011 L 58, p. 1).

11 Council Decision of 31 July 2015 concerning restrictive measures in view of the situation in Libya, and repealing Decision 2011/137/CFSP (OJ 2015 L 206, p. 34).

12 The following details are given: ‘Other information: Listed pursuant to paragraphs 15 and 17 of Resolution 1970 [(2011)] (Travel Ban, Asset Freeze). Believed status/location: deceased’. They were supplemented by the annex to Council Implementing Regulation (EU) 2017/489 of 21 March 2017 implementing Article 21(5) of Regulation (EU) 2016/44 concerning restrictive measures in view of the situation in Libya (OJ 2017 L 76, p. 3) as follows: ‘Reportedly deceased in Sirte, Libya, on 20 October 2011. INTERPOL-UN Security Council Special Notice web link: https://www.interpol.int/en/notice/search/un/5525915’.

13 For the Republic of Malta, the internet address shown in Annex IV to Regulation 2016/44 is available at: https://smb.gov.mt/.

14 Council Regulation of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).

15 The referring court explains that the State of Libya has not instituted any legal proceedings – criminal or otherwise – in Libya as a result of Mutassim Qadhafi’s death.

16 Available at: https://ecourts.gov.mt/onlineservices/Judgements/PrintPdf?JudgementId= 0&CaseJudgementId= 108575; ‘the judgment of 23 October 2017. That judgment has been placed in the Court’s file.

17 Available at: https://ecourts.gov.mt/onlineservices/Judgements/PrintPdf?CaseJudgementId= 132984&JudgementId= 0; ‘the judgment of 28 June 2022’. That judgment has been placed in the Court’s file.

18 See, to the best of my knowledge, the only document that mentions de-listing in the event of the death of the person concerned: the Note of 3 July 2024 from the General Secretariat of the Council to Delegations (Document 11623/24) on ‘Restrictive measures (Sanctions) – Update of the EU Best Practices for the effective implementation of restrictive measures’, with regard to EU autonomous sanctions (paragraph 18).

19 See judgments of 21 April 1988, Pardini (338/85, EU:C:1988:194, paragraph 8), and of 22 October 2024, Kolin Inşaat Turizm Sanayi ve Ticaret (C‑652/22, EU:C:2024:910, paragraph 36 and the case-law cited).

20 See judgments of 22 October 2024, Kolin Inşaat Turizm Sanayi ve Ticaret (C‑652/22, EU:C:2024:910, paragraph 37 and the case-law cited), and of 1 August 2025, Tiberis Holding (C‑514/23, EU:C:2025:597, paragraph 34).

21 See judgments of 22 October 2024, Kolin Inşaat Turizm Sanayi ve Ticaret (C‑652/22, EU:C:2024:910, paragraph 38), and of 1 August 2025, Tiberis Holding (C‑514/23, EU:C:2025:597, paragraph 35).

22 See point 34 of this Opinion. At page 12 of the judgment of 23 October 2017, it is stated that the Avukat Ġenerali ta’ Malta (Attorney General of Malta) informed the Prim’Awla tal-Qorti Ċivili (First Hall of the Civil Court) that the Uffiċċju tal-Avukat Ġenerali ta’ Malta (Office of the Attorney General of Malta) had received a notification from the Panel of Experts that the ‘property under claim, the company and assets known as Capital Resources …, wholly owned by Muatassim Qadhafi, and any other assets belonging to him, should remain frozen in accordance with the asset freeze measure. Likewise, assets owned or controlled by [CD] should be frozen in accordance with the said measure’.

23 See pages 32 and 33 of that judgment, where two provisions are cited that provide for the making available of frozen assets to and for the benefit of the Libyan people, including paragraph 18 of Resolution 1970 (2011). See point 6 of this Opinion.

24 See page 50 of the judgment of 28 June 2022. The text in bold appears in that judgment.

25 See point 52 of this Opinion.

26 In the judgment of 23 October 2017, it is stated, on the one hand, that the State of Libya argued that ‘Mutassim Qadhafi could not have accumulated, with the salary he received as an officer of the Libyan army, all those assets held in his name or in the name of third parties here in Malta and that those assets were accumulated in breach of the military laws of the State of Libya applicable to officers of the Libyan armed forces and/or by abusing the office he held at the expense of Libya’s public coffers, and those assets must therefore be returned to the State of Libya’. On the other hand, ‘the present case concerns … the obligation that … Mutassim Qadhafi would have had, under Libyan martial law – that is to say, under Libyan public law – not to engage in commercial activities while he was serving in the Libyan army’.

27 See definition set out in Article 1(b) of Regulation 2016/44, cited in point 9 of this Opinion. In that regard, for a detailed analysis of that concept defined in substantially similar terms in other regulations, see my Opinion in SBK Art (C‑465/24, EU:C:2025:732, points 22 to 29 and points 31 to 33 and the case-law cited).

28 See judgment of 12 March 2026, SBK Art (C‑465/24, EU:C:2026:187, paragraph 43 and the case-law cited).

29 See judgment of 11 November 2021, Bank Sepah (C‑340/20, EU:C:2021:903, paragraph 59).

30 C‑84/24, EU:C:2026:181.

31 See judgment of 12 March 2026, EM System (C‑84/24, EU:C:2026:181, paragraph 118).

32 See point 13 of this Opinion.

33 See, for the Republic of Malta, footnote 13 to this Opinion.

34 See, on the principle that the possibility of implementing a measure in respect of frozen assets should be assessed solely in terms of the legal effects it brings about and not in terms of the grounds for the claim relating to that measure, the judgment of 11 November 2021, Bank Sepah (C‑340/20, EU:C:2021:903, paragraph 63).

35 See report of the Panel of Experts communicated to the Security Council on 12 November 2024, available at: https://docs.un.org/en/S/2024/914, item VII, A (p. 53). At the hearing, the Maltese Government stated that an adverse opinion had been given. Owing to the lack of references provided, my searches on the website containing the reports of the Panel of Experts (https://main.un.org/securitycouncil/en/sanctions/1970/panel-experts/reports) were unsuccessful (see last report dated 24 March 2026). The wording of the opinion suggests that the decision in question has been executed, yet that cannot be the case, given the pending appeal (see details in Annex 91 to that first report), as a result of which this request for a preliminary ruling is before the Court.

36 See point 4 of this Opinion.

37 See, inter alia, paragraphs 13 and 17 of resolution 2819 (2026).

38 See, by analogy, Opinion of Advocate General Norkus of 4 September 2025 in Čiekuri-Shishki (C‑480/24, EU:C:2025:672, points 3, 28, 75 and 77).

39 See judgment of 16 October 2025, Timchenko and Timchenko v Council (C‑805/24 P, EU:C:2025:792, paragraphs 20 to 24 and the case-law cited).

40 See ‘I/A’ Item Note of 2 July 2024 from the General Secretariat of the Council to the Permanent Representatives Committee/Council (Document 11618/24) on the ‘Sanctions Guidelines – update’, part H, relating to the implementation of Security Council resolutions.

41 See judgment of 1 August 2025, Royal Football Club Seraing (C‑600/23, EU:C:2025:617, paragraph 87).

42 C‑802/24, EU:C:2026:110.

43 Council Regulation of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 229, p. 1).

44 See Opinion of Advocate General Biondi in Reibel (C‑802/24, EU:C:2026:110, points 63 to 66 and 69 and 70).

45 By its first question for a preliminary ruling, the Rīgas apgabaltiesa (Regional Court, Riga, Latvia) seeks to ascertain, in essence, whether a breach of Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 6) should be considered a breach of EU public policy.

46 C‑842/24, EU:C:2026:233.

47 Council Regulation of 18 December 2014 concerning restrictive measures in view of the situation in Yemen (OJ 2014 L 365, p. 60). Article 2(2) of that regulation provides that ‘no funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies listed in Annex I’.

48 See Opinion of Advocate General Szpunar in DNO Yemen (C‑842/24, EU:C:2026:233, point 109 and, in particular, footnote 76 and the case-law cited).

49 In his Opinion delivered on 4 September 2025 in Čiekuri-Shishki (C‑480/24, EU:C:2025:672), which did not concern the recognition of an arbitration award, Advocate General Norkus considered that a national court can, in principle, adjudicate on civil claims only if it is able to ensure that its decision does not contravene the provisions on the sanctions laid down in Regulation No 269/2014 (point 78).

50 See point 58 of this Opinion.

51 See points 35 and 36 of and footnote 26 to this Opinion.

52 Underlined in the request for a preliminary ruling.

53 See point 69 of this Opinion.

54 See pages 46 and 47 of the judgment of 28 June 2022.

55 See point 56 of this Opinion. The Court has held that the freezing measure does not, in itself, affect the ownership of the assets which are the subject of that measure. See judgment of 15 December 2022, Instrubel and Others (C‑753/21 and C‑754/21, EU:C:2022:987, paragraphs 50 and 51 and the case-law cited).

56 Available at: https://docs.un.org/en/S/2014/106; ‘report S/2014/106 of the Panel of Experts’.

57 That judgment was cited by the State of Libya in support of its application. Paragraph 249 of report S/2014/106 of the Panel of Experts states: ‘this approach has already been used in a case brought by the Government of Libya in the [High Court of Justice (England & Wales), King’s Bench Division (Commercial Court)]. The case concerned property in the United Kingdom owned by the company Capitana Seas Ltd., which is beneficially owned by Saadi Qadhafi, another designated individual. After hearing evidence on behalf of the Government of Libya, the court decided that the property had been improperly transferred from the Libyan State to Saadi Qadhafi and was therefore held in trust by him on behalf of the Libyan people, the real owner (see annex XIV [of this report]). Given that the property had never been legally transferred to Saadi Qadhafi, it was not subject to the asset freeze.’

58 The recommendation of the Panel of Experts to the Security Council on the freezing of assets is as follows in paragraph 288 of report S/2014/106 of the Panel of Experts: ‘by paragraph 18 of its resolution 1970 (2011), the Security Council states that frozen assets should at a later stage be made available to and for the benefit of the people of Libya. This has led to confusion with regard to claims by the Government of Libya for assets that are frozen because they belong to listed individuals. The Panel of Experts recommends that any future resolution of the Council regarding the Libyan sanctions regime address the mechanisms by which frozen assets are disposed of, in particular with regard to assets belonging to listed individuals. This is to ensure that: (a) Frozen national assets stolen by such individuals are legally recovered by the relevant State through due legal process; (b) The property rights of the individuals concerned are not violated.’

59 Terms taken from report S/2014/106 of the Panel of Experts. See point 79 of and footnote 58 to this Opinion.

60 See point 13 of this Opinion.

61 Regulation of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1) (‘the Brussels Ia Regulation’).

62 See, to that effect, judgments of 16 June 2016, Universal Music International Holding (C‑12/15, EU:C:2016:449, paragraph 44 and the case-law cited), and of 13 February 2025, Athenian Brewery and Heineken (C‑393/23, EU:C:2025:85, paragraphs 41 to 43 and the case-law cited). See, also, judgment of 14 July 2022, EPIC Financial Consulting (C‑274/21 and C‑275/21, EU:C:2022:565, paragraph 57 and the case-law cited). The Court has stated that Regulation No 44/2001, repealed and replaced by the Brussels Ia Regulation, is applicable in a dispute between a defendant domiciled in a Member State and an applicant from a third country (see judgment of 17 March 2016, Taser International (C‑175/15, EU:C:2016:176, paragraph 20)).

63 See point 41 of this Opinion.

64 See, to that effect, judgment of 7 September 2023, Charles Taylor Adjusting (C‑590/21, EU:C:2023:633, paragraph 29 and the case-law cited).

65 See, to that effect, judgments of 21 January 2016, ERGO Insurance and Gjensidige Baltic (C‑359/14 and C‑475/14, EU:C:2016:40, paragraph 43), and of 15 January 2026, Wunner (C‑77/24, EU:C:2026:1, paragraph 40).

66 See point 37 of this Opinion.

67 See point 87 of this Opinion.

68 See judgments of 16 July 2020, Movic and Others (C‑73/19, EU:C:2020:568, paragraph 37, in which the adverb ‘alternatively’ is used for the first time), and of 3 September 2020, Supreme Site Services and Others (C‑186/19, EU:C:2020:638, paragraph 55 and the case-law cited).

69 See, to that effect, judgment of 12 September 2013, Sunico and Others (C‑49/12, EU:C:2013:545, paragraph 34). See also judgment of 3 September 2020, Supreme Site Services and Others (C‑186/19, EU:C:2020:638, paragraph 56).

70 See judgment of 3 September 2020, Supreme Site Services and Others (C‑186/19, EU:C:2020:638, paragraph 57).

71 See, by analogy, judgment of 15 November 2018, Kuhn (C‑308/17, EU:C:2018:911, paragraphs 37 and 42 relating to the exceptional nature of the law in question), as distinct from the judgment of 11 June 2015, Fahnenbrock and Others (C‑226/13, C‑245/13 and C‑247/13, EU:C:2015:383), relied on by the State of Libya. Admittedly, that judgment concerns the same circumstances. However, its scope must be limited to the instrument of cooperation interpreted, which relates to the service in the Member States of judicial and extrajudicial documents in civil or commercial matters. See, in that regard, Opinion of Advocate General Bot in Kuhn (C‑308/17, EU:C:2018:528, points 48 to 58). See, also, as regards the defence of economic public order, judgment of 22 December 2022, Eurelec Trading (C‑98/22, EU:C:2022:1032, paragraph 26).

72 Law No 10 of 2002 has a more restricted scope compared with Law No 3 of 1986. See point 21 of this Opinion.

73 The referring court does not specify on what basis the action against Capital Resources is brought.

74 See, to that effect, judgment of 28 July 2016, Siemens Aktiengesellschaft Österreich (C‑102/15, EU:C:2016:607, paragraphs 38 and 40, in the case of a debt which arises from an act of public authority, namely a fine imposed by a competition authority). See, by contrast, judgments of 11 April 2013, Sapir and Others (C‑645/11, EU:C:2013:228, paragraphs 35 and 36, as regards an action for recovery of an amount unduly paid based on unjust enrichment, the civil law legal basis of which is also applicable, without distinction, to private individuals), and of 12 September 2013, Sunico and Others (C‑49/12, EU:C:2013:545, paragraphs 39 and 40, regarding an action brought against defendants not subject to value added tax and therefore not based on tax law).

75 Regarding the principle that the public purpose of certain activities does not, in itself, constitute sufficient evidence to classify them as being carried out iure imperii, in so far as they do not entail the exercise of any powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals, see, by analogy, judgment of 3 September 2020, Supreme Site Services and Others (C‑186/19, EU:C:2020:638, paragraph 66 and the case-law cited).

76 See Articles 6 to 8 of Law No 10 of 2002.

77 See Article 9 of Law No 10 of 2002.

78 See Article 12 of Law No 10 of 2002.

79 For a similar finding, see judgment of 22 December 2022, Eurelec Trading (C‑98/22, EU:C:2022:1032, paragraph 26).

80 The Court has held that Article 5(4) of the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, signed in Brussels on 27 September 1968 (OJ 1972 L 299, p. 32), as amended by the successive conventions on the accession of the new Member States to that Convention (OJ 1998 C 27, p. 1), the provisions of which are equivalent to Article 7(3) of the Brussels Ia Regulation, is based on the civil nature of the right to compensation following a criminal conviction which is generally recognised in the legal systems of the Contracting States. See judgment of 21 April 1993, Sonntag (C‑172/91, EU:C:1993:144, paragraph 19). See, to that effect, judgment of 22 October 2015, Aannemingsbedrijf Aertssen and Aertssen Terrassements (C‑523/14, EU:C:2015:722, paragraph 32 and the case-law cited).

81 C‑172/91, EU:C:1993:144.

82 See paragraphs 3 to 5 of that judgment.

83 On my reading of the free translation of the judgment of 28 June 2022, no civil law provision is cited. Only the special laws are discussed on pages 44 to 49. Therefore, the State of Libya’s reference to the judgment of 14 November 2002, Baten (C‑271/00, EU:C:2002:656), does not seem relevant. See paragraph 32 of that judgment on the civil law rules on which an action for recovery of social assistance brought by a public body against a person liable to pay maintenance is based.

84 See point 20 of this Opinion.

85 See point 19 of this Opinion.

Opinion of Advocate General Richard de la Tour delivered on 3 September 2026.###

Gesamter Gesetzestext

Setzen Sie Ihre Recherche in ChatGPT oder Claude fort