Guest Post: Maya Lester on the Standard of Review in Sanctions Cases -- AG Bot's Opinion in Kadi II

This guest post is by Maya Lester (Brick Court Chambers), who is acting for Yassin Kadi in his continuing litigation before the Court of Justice of the EU.  The post originally appeared on the European Sanctions blog and is cross-posted here with permission (HT Gráinne de Búrca, NYU Law School).

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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.

Top Secret Intelligence in Europe: A Tipping Point in Luxembourg? (Guest Post)

This guest post is by Deirdre Curtin, Professor of European Law at the University of Amsterdam and Director of the Amsterdam Centre for European Law and Governance (ACELG).  This term, she is also a visiting fellow at NYU Law School.  This post originally appeared originally on acelg.blogactiv.eu and we are pleased to cross-post it here.

Kadi is back in Luxembourg and with a vengeance! The timing is interesting both for the case itself and more generally for highlighting the use of secret intelligence and evidence to justify detention and other sanctions.

To start with the case itself, the oral hearing of the new Kadi case (Kadi 2) took place in Luxembourg earlier this week before the Court of Justice of the EU (CJEU). After 11 years on a UN freezing of assets list, Mr. Kadi was actually de-listed by the UN Al Qaeda Sanctions Committee some 10 days prior to that and then, a week later, by the European Commission. The immediate issue is of course one of the (continuing) admissibility of the appeal. Is there in fact still an interest in the CJEU adjudicating the case in these new and changed circumstances? The appealing Union institutions, the Commission and the Council, (supported by a total of 13 Member States intervening in the procedures) argued during the oral hearing that the interest is in having “the law” authoritatively clarified on the matter. For Mr Kadi rather the position is that the appeals should be dismissed as having no further legal significance since the Commission had withdrawn its own regulation 2 days before the hearing so it has no interest in continuing to argue for its legality.

Almost irrespective of what the Court actually does in this particular case, this long strung out litigation (together with the many other sanctions decisions challenged before the Luxembourg courts in recent years and still pending where the issue of secret evidence is more directly at issue) is of much wider structural significance in terms of the secrecy culture that is entrenched (and inter-locked) at all levels of government, including increasingly the supranational level. This structural issue is likely to continue to come before the Courts in Luxembourg in a variety of ways given the Union’s expanded practice in the fields of internal and external security (on the supranational context of this more general security landscape, see my 2011 lecture Top Secret Europe).