#5281 - The Terrorist Lists - EU Integration Law

The EU Anti-Terror Lists

LLM EU Integration Notes

Introduction 4

UN Security Council 4

UN Al-Qaida Regime 4

EU Implementation 4

Competence and Jurisdiction 5

Competence 5

Pre-Lisbon 5

Post-Lisbon 5

Article 215 TFEU 5

Article 75 TFEU 5

Choosing Between the Legal Bases 5

Jurisdiction 6

Pre-Lisbon 6

Post-Lisbon 7

Conclusions 7

The UN Terrorist Lists 8

Background: The Kadi Saga 8

Kadi I 8

Kadi II 8

Different Perspectives 8

International law perspective 8

EU Law Perspective 9

Autonomy of the EU 9

Binding Nature of UNSCRs Under International Law 9

Under EU law 9

Functional Succession 9

Impact on judicial review/fundamental rights 9

When does it matter? 9

Alternative approaches 10

EU based but deferential review 10

International based review 10

Complete deference 10

The doctrine of equivalent protection 10

Applicability to the UN 11

The EU Terrorist Lists 12

Legal Framework 12

A Decision By A Competent Authority 13

Scope of the Decision Ratione Personae 13

Procedure 13

Scope of the Decision Ratione Materiae 13

Nature of the Decision 13

Threshold 13

Imposition of Sanctions by the Council 14

Deference 14

Discretion 14

Human rights responsibility 15

Handling Confidential Information 17

The UN List 17

Potential Reforms 17

EU Lists 17

The Court’s Response 17

Special Advocates 18

Introduction

This is all about fundamental rights and judicial protection, and their application in practice. The context of the discussion is the terrorist list – a practice whereby executive bodies identify people suspected of being a terrorist and a range of restrictive measures are imposed upon them. These are preventative measures designed to prevent terrorism offences.

In the EU, there are two lists. Firstly, the UN list – the EU acts as an agent giving effect to what has happened at an international level. Secondly, the EU list – drawn up by the EU institutions themselves, based on the decision of a competent authority. For example, if a UK prosecutor has evidence, they will forward it to an EU body, and a decision will be taken on the basis of that evidence.

This body has primary responsibility to uphold peace and security. To do this, it has broad discretion when to act – it can act whenever it deems there to be a threat to peace. It acts in all sorts of conflicts - not only inter-state but also purely internal. It also has broad discretion about how to act. It can use targeted economic sanctions (such as embargos) as well as force. Economic sanctions are very harmful to the civilian population, and so specific individual targeting is now much more likely to be used.

Started with sanctions on the Taliban in Afghanistan in order to pressure them into handing over Bin Laden, and when they failed to do this, the sanctions were extended to Al-Qaida. After 9/11, and the defeat of the Taliban, these sanctions were no longer applicable to a state actor, so something had to change.

Neither the listing procedure, nor to procedure to instigate removal from the list comply with rights of due process, so a number of resolutions have tried to reconcile the fight against terrorism with these human rights concerns.

SC Resolution 1373 – imposed a duty on all states to impose sanctions on suspected terrorists, and to criminalise terrorism (specific definition). No specific list of terrorists established.

Introduced in 2002 – CFSP common position, sanctions under SCR 1373 implemented by means of EU Regulations. Common position established two distinct regimes. EU list of terrorists – internal and external, based on whether they were based within the EU (e.g. ETA, the Basque separatist group, 17 November, Baader-Meinhoff). For internal terrorists, there was an enhanced obligation on Member States to track down terrorists and contribute to their prosecution. For external terrorists, like the UN list, there were sanctions by means of EU regulations. Some people removed from the list, under Lisbon.

Terrorist lists directly engage a number of rights. Can we really say that these sanctions are merely administrative? They are basically criminal sanctions, now, and with that comes some extra considerations. There are two contexts that we need to examine:

1. Multi-layered (UN/EU, mixed proceedings) context – scope of human rights, responsibility

2. Security context

Competence and Jurisdiction

Pre-Lisbon, this was very controversial – see 100 paragraph discussion in Kadi. Only foreign terrorists were sanctioned, under Articles 60, 301, and 308.

Article 301 EC – Inter-pillar mechanism – economic sanctions. Article 60 EC – third countries measures. Crucially, neither of these mention individuals, but AG Maduro said that these were sufficient to affect individuals, because targeting individuals would lead to reducing economic relations with third countries, but this was rejected. The aim of these measures was counter-terrorism, and not affecting third countries.

Article 308 EC – allows for the extension of the ambit of the powers in Article 301 and Article 60 as long as there are some conditions fulfilled. Firstly, there must be an EC objective (not a CFSP objective), but the court gets around this – Art 301 and 60 express an underlying community objective to adopt measures for the effective pursuance of the CFSP, so this is justified. Secondly, there must be a link to the Common Market. This is tricky, but we can show a link – that freezing assets will affect the common market.

Competence was the first major hurdle.

Now we have two legal bases for the power to sanction individuals.

This is essentially an expansion of the inter-pillar mechanism. Now there is a second paragraph, which allows the EU to take restrictive measures (not just economic and financial) against natural or legal persons, and non-state entities after a decision has been adopted under the CFSP, as well as against states. This was used for the implementation of the UN list.

Now there is the ability for the parliament (using the ordinary legislative procedure) to adopt measures against persons if necessary to prevent and combat terrorism. This has not been used, but we can assume that it is probably likely to be used for internal terrorists.

Do we use Art 75 or Art 215? Art 75 requires OLP, but Art 215 requires unanimity under the CFSP. The relationship between the two legal bases is unclear – the scope of Art 75 TFEU is more defined, relating to capital movements and payments, and is restricted to individuals, whereas Art 215 TFEU provides for all types of restrictive measure and also measures against third countries. It could therefore be argued that Art 75 is Lex Specialis as far as financial sanctions are concerned with other individualized sanctions falling within Art 215. On the other hand, Article 215 is found within the measures relating to external relations provisions of the TFEU, whereas Art 75 is placed within the AFSJ; so although neither provision is expressly limited in this way, it could be argued that Art 215 is intended to be used against persons engaged in activities outside the EU, whereas measures against those active only in the EU should be based on Art 75. The choice of legal basis must be based on objective criteria amenable to judicial review. No longer any preference given to a TFEU basis as opposed to a CFSP basis. Instead, we need to look at the traditional case law – Titanium Dioxide:

1. Content

2. Aim

If we take the Titanium Dioxide approach, we have a number of criteria we might want to look at.

1. Nationality of the person – internal vs external – OLP vs CFSP. The problem with this is that it doesn’t concord with past practice – Yusuf (Swedish). This means that some organisations will be targeted under a split of basis, so this seems silly.

2. Subject-Matter – Art 75 is about terrorism, 215 is not so specific, more for use for more traditional conflicts. However, this doesn’t follow from the treaty – can argue that you can interpret the treaty articles against this.

3. Type of Measure – Art 75 is only for administrative measures relating to capital. For travel bans, need to use Art 215 anyway. As a result, Article 75 has become Lex Specialis for asset freezing.

4. Origin of the list – this would mean that if the list emanates from the UNSC, need to use 215. If the EU under its own autonomous powers draws it up, then you need to use Art 75, but this is wrong, and open to challenge.

5. Territorial base of the organisation – distinction between external and internal terrorists. All those organisations that are focussed outside the EU will be targeted under Article 215. Inside will be targeted under Art 75.

CJEU in C-130/10 European Parliament v Council says that Article 215 is a proper legal basis. The starting point is the aim and content test. There is no mention of Article 40 at all. Titanium Dioxide – when a measure pursues two contexts, you look for the more important one. Cannot use two legal bases together. These two provisions are complementary, and are meant to fulfil different objectives. It is the content that determines the legal basis, not the procedure that determines the substance. There is a distinction in the judgment between terrorism and international terrorism (there is a question as to whether this the distinction between internal and external?). Maybe Art 75 is about internal security, and Art 215 is about external security. AG says that this distinction is wrong – terrorism inherently knows no...