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On 19 March 2013, Advocate General Bot (the
French Advocate General at the European Court of Justice) handed down his
Opinion in the Kadi II case (see here).
Mr Yassin Kadi was designated by the UN
Security Council Sanctions Committee just after 9/11. At the request of
the United States, he was added to a list of people in UN Resolution 1267 that
were alleged to be connected with bin Laden, Al Qaida or the Taliban. The
European Union implemented that UN resolution in an EU Regulation which Mr Kadi
challenged in an action for annulment, on the grounds that he had been given no
reasons for his designation, no chance to make observations, and the regulation
had no proper legal basis.
The Court of First Instance (Case T-315/01)
held that the Court could not judicially review the EU measure for compliance
with fundamental rights unless it violated ‘ius cogens’ (genocide, slavery
etc), because to do so would violate the international legal order and the
primacy of the United Nations. On appeal to the Court of Justice (Case
C-402/05), Advocate General Poiares Maduro disagreed with the CFI, stating (in
a well known opinion) that the European Union is based on the rule of law, and
its Courts must ensure that all acts of the EU institutions, including those
that derive from international measures, comply with EU fundamental
rights. The Grand Chamber of the Court of Justice followed his opinion,
and held (on 3 September 2008, in Kadi I)
that Mr Kadi’s listing by the EU breached those principles since it provided no
reasons, no evidence, and no opportunity to make representations. This is
now the leading judgment on the relationship between the EU and international
legal orders, on EU fundamental rights, and on judicial review of sanctions
designations.
After that ECJ judgment, Mr Kadi was
re-listed by the EU in a new regulation, and this time was sent the UN’s
summary of its reasons for his designation. He brought a second action
for annulment in the General Court (the new name for the CFI), Case T-8/509,
and won. The Court held that it was competent to review the EU measure,
and that the summary of the UN’s reasons did not comply with the EU’s duty to
give reasons because the reasons were too vague to permit Mr Kadi to respond
meaningfully, he was given no evidence, and his comments were not taken into
account. The General Court said that the European Council had only paid
“lip service” to the judgment in Kadi I
and provided a “simulacrum” of due process, and that his re-listing was a
disproportionate restriction on his property rights and reputation.
The Council, Commission, and United Kingdom
all appealed against that judgment, and 13 Member States intervened in their
favour. Advocate General Bot’s opinion is a non-binding opinion in that
appeal; the ECJ may or may not agree with him. He has said that the
General Court was right to hold (like the ECJ in Kadi I) that EU acts implementing UN resolutions are not immune
from review by the Court, but that the General Court has applied the wrong
standard of judicial review, and Mr Kadi’s rights were complied with.
The opinion focuses principally on the
standard of judicial review. The Advocate General thinks that the Court
should “adapt” or “modify” its usual standard of review when it is dealing with
counter-terrorist sanctions deriving from UN resolutions. It should carry
out a “limited” review of what he describes as the “internal lawfulness” of the
EU measure, and a “normal” and “rigorous” review only of its “external”
lawfulness.
The most obvious question arising from the
opinion is what the Advocate General means by review of "internal"
and "external" lawfulness. On one view, "internal"
refers to "procedural" grounds of review, and "external"
to “substantive” or “merits” review. The Advocate General
suggests that "internal" review includes whether the EU act was
adopted by means of a procedure that respects rights of defence (adequate
reasons, a chance to comment, a chance for new information and evidence to be
presented, and for comments to be “scrupulously examined” and taken into
account). "External” lawfulness includes the “merits” of a designation
decision, its evidential support factual accuracy, and proportionality.
In the Advocate General's opinion, these matters should be presumed to be
correct, and should only be reviewed by the Court for “manifestly error”.
Of the numerous issues likely to arise from
this opinion in addition to the standard of review, the following are a few.
First, the application of these
standards of review to Mr Kadi's case. The Advocate General briefly
commented that in his view Mr Kadi was aware of the reasons for his designation
in sufficient detail, and had not shown that the Commission had not examined
his comments.
Second, Mr Kadi had already been
de-listed by the UN and EU by the time these appeals were heard; the UN
Ombudsperson proposed his de-listing to the Security Council and the EU
delisted him in turn. The Advocate General does not spend much time on
this issue of the appellants’ continuing interest in the appeal.
Third, how far (if at all) the Advocate
General’s views apply to “autonomous” and non-terrorist sanctions cases, given
his comments that autonomous listings should rely on evidential assessments by
national authorities, and his emphasis on the international UN context of his
remarks.
Fourth, the Advocate General comments on
the need for co-operation and information-sharing between EU and the UN
Security Council; in his view, an intensive standard of review would result in
less information being shared.
Fifth, he opines on whether decisions of
the Security Council are now less “political” and “inter-governmental” given
the existence of the UN Ombudsperson for the 1267 list. In his view, the
Ombudsperson’s role should result in a weaker intensity of review by the
European court and (as the Advocate General would like) a “presumption of
justification”.
The next step will be for the ECJ to give
its judgment…
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