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the position is that the appeals should be dismissed as having no further legal significance since the Commission had withdrawn its own regulation 2 days before the hearing so it has no interest in continuing to argue for its legality.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).