EU case law - Statewatch terrorist lists site - (updated: 25 June 2007) The EU Courts Neither the legislation on the "terrorist" lists (Common Position 2001/931 and Regulation 2580/2001) or on the incorporation of UN sanctions framework (Regulation 881/2002) make any provision for individuals or groups to challenge the incorrect freezing of assets as a result of erroneously being included. Moreover, the validity of EU Common Positions cannot be challenged before the Court of Justice, and national courts cannot ask the European Court questions about their validity or interpretation. However, those subject to freezing orders can apply to a member state requesting a "specific authorisation" to unfreeze funds and resources. After consultation with the other Member States, the Council of the EU and the European Commission the requested state can reject the application or grant the specific authorisation. The Regulation and Decisions implementing them are subject to possible rulings by the European Court of Justice on their interpretation or validity, but this is undermined for Regulations connected to the Common Position. Thus, the only possible legal remedies are general principles of EU/EC law. There are two methods formally available at the EU level and several other possible avenues which commence with national litigation. First, a Council Decision can be challenged by an annulment action according to Article 230 TEC. Second, damages may be sought from the Community institutions if there is harm as a result of their unlawful acts under Article 288 EC (the unlawful act for EU external blacklisted people and groups would be the freezing of their assets, whereas EU internal blacklisted people and groups would probably only be able to complain about damage to reputation). A number of cases have been lodged on these grounds (see below). Less likely is the possibility that a listed "EU external" person or entity has assets (for example, a bank account) within an EU state which is frozen. That person or entity could, theoretically, bring an action under national law for breach of national law (for example, contract law) against the entity (the bank) for refusing to allow access to the asset (the account). The bank in turn will defend its action by reference to the regulation. The national court would than have to decide the issue of the lawfulness of the regulation, in turn (usually) requiring a request to the ECJ for a preliminary ruling under Article 234. It is also possible to argue, before the European Court of First Instance, on the basis of the "Borelli principle" that the Council decision is invalid because there is no valid and correct decision by a national competent authority justifying a blacklisting. Under EC case law, national decisions must be motivated by reference to objective and reviewable criteria, including where this is relevant, expert opinions and recommendations. Alternatively, one can challenge whether the considerations by the Council justifying the blacklisting decision are reasonable and proportional. Finally, one can argue that the preparatory decisions of the competent national authority and/or the Council decision violate fundamental rights. Even though the Charter on Fundamental Rights does not (yet) have a binding legal status, according to the well established case-law of the ECJ and Article 6 TEU, the EC is bound to respect fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, as general principles of Community law (Cameron, 2003 - see note 1). Lawyers for one of the proscribed individuals have also challenged - unsuccessfully - the EU Council's decision to refuse access to the documents relating to the decision to include their client on the "terrorist" list. Bowring and Korff (see legal analysis) urge caution over pursuing cases through the CFI and the ECJ, arguing that these courts are ill-equipped to deal with the matters in question and are likely to adopt a minimalist approach to any judicial review they may carry out of the Common Positions and Regulations concerned. They suggest that this could set a bad precedent for any Strasbourg adjudication on the matter. Instead they recommend: • that legal challenges are pursued with vigour at the national level, first of all in countries in which it is likely that the courts will decline jurisdiction on the basis that the issue is entirely determined by EC/EU law: this would allow for an immediate submission thereafter of an application to the European Court of Human Rights; and    • that an organisation pursue challenges in countries in which it has a good chance of the domestic courts being willing to hold (either on the basis of the ECHR, where the Convention is directly applicable and given a high status, or on the basis of the national constitution) that they should be granted full “access to court”, with the (domestic) court in question being able to assess the underlying matters of law and fact in full. For information on the procedures used in the UK, US, EU and UN frameworks see "comparative analysis" The European Court of First Instance Applicant(s) Date Case reference Details Judgment Abdirisak Aden and Others [al-Barakaat, Sweden] 10 December 2001 T-306/01 (OJ 2002 C 44/47) The Applicants argued that the EU Council had exceeded its powers in freezing the resources associates of the Taleban under Regulation 467/2001 (March 2001) under Articles 60 EC and 301 EC. They sought annulment of Regulations 467/2001 and 2199/2001 (implementing legislation), arguing that the "fundamental legal principle of the right to a fair and equitable hearing" had been disregarded. Ultimately, the al-Barakaat trio were removed from the UN and EU lists (see below).      Application for interim relief ("urgency proceedings") dismissed, 7 May 2002 [2002] ECR II-2387 Dismissed, 21 September 2005 (appealed to ECJ, see case C-402/05 P, below) Yassin Abdullah Kadi [Saudi Arabian businessman] 18 December 2001 T-315/01 (OJ 2002 C 56/16) Also concerns Regulation 467/2001 (above). Applicant sought an annulment of the Regulation as far as it relates to him, arguing interference with property rights and violation of the Community Law principle of effective judicial control because of the failure to provide any opportunity for redress. Later removed from ECJ register - applicant presumably delisted      Dismissed, 21 September 2005    Omar Mohamed Othman [Jordanian residing in the UK] 17 December 2001 T-318/01 (OJ 2002 C 68/13) Also seeks annulment of Regulation 467/2001 (above) and implementing Regulation 2062/2001. Argues misuse of Council powers and violation of articles 3 and 8, ECHR and violation of the principle of subsidiarity.        Congrès National du Kurdistan [in respect to PKK]    2 July 2002 T-206/02 (OJ 2002 C 247/13) Note: the UK and the Commission supported the Council Sought annulment of the decision to proscribe the PKK arguing defamation, erroneous judgment, denial of freedom of expression and sought damages of 10,000 euro. Also argued failure to provide procedural remedies and that the PKK has been advocating non-violence since 1999.      Dismissed, 15 February 2005 Organisation des Modjahedines du Peuple d’Iran (OMPI) [PMOI] 26 July 2002 T-228/02 (OJ 2002 C 247/20) The Applicants sought partial annulment of the Decisions and Common Positions implementing Common Position 2001/931 and Regulation 2580/2001 (on freezing the assets of "foreign" terrorists) and damages of 1 euro. In support of their claims, the applicants argued breach of the right to defence, failure to recognise its actions as resistance to occupation and tyranny and breach of the principle of non-discrimination.     Ruling in favour of applicant, 12 Decmber 2006  Kurdistan Workers Party (PKK) and Kurdistan National Congress (KNK) 31 July 2002 T-229/02 (OJ 2002 C 233/32) Note: the UK and the Commission supported the Council The Applicants sought annulment of the Decision to proscribe them and related damages. They argued that the EU had breached its own procedural rules in failing to recognise that the PKK had renounced violence, breach of civil, cultural and political rights, breach of fundamental rights and principles of Community law and misuse of Council powers.      Dismissed, 15 February 2005 (appealed to ECJ, see case C-229/05 P, below) Chafiq Ayadi [Irish resident] 22 August 2002 T-253/02 (OJ 2002 C 289/25) Seeks annulment of Regulation 881/2002 implementing Regulation 467/2001 (on freezing Taleban associates' assets. above). Argues that UN measures do not impose a duty to apply such measures, misuse of Council and Commission powers and violation of the principles of subsidiarity and proportionality and respect for human rights. Also argues failure to provide opportunity for judicial redress and reasons.      Dismissed, 12 July 2006 Gestoras Pro Amnistía association, Juan Mari Olano Olano and Julen Zelarain Errasti [a Basque Group and associated individuals]      31 October 2002 T-333/02 (OJ 2002 C 19/36) The Applicants sought combined damages of 1.2 million euro. Arguments identical to those in case T-338/02, below.     Dismissed, 7 June 2004 (appealed to ECJ, see case C-354/04 P, below) SEGI association, Araitz Zubimendi Izaga and Aritza Galarraga [a Basque Group and associated individuals]    13 November 2002 T-338/02 (OJ 2003 C 7/24) The Applicants sought combined damages of 1.2 million euro. They argued that their fundamental rights to the presumption of innocence, a fair hearing, freedom of speech, self-determination and privacy had been breached. They also argued that the procedure used to adopt Common Position 2001/931 and Regulation 2580/2001 was unlawful and failed to provide them with adequate defence rights.      Dismissed, 7 June 2004 (appealed to ECJ, see case C-355/04 P, below)    Jose Maria Sison [accused of being head of the "New People's Army" in The Philippines, residing in Holland]     6 February 2003 T-47/03 (OJ 2003 C 101/41) Seeks partial annulment of the Decisions to proscribe Mr. Sison, annulment of Regulation 2580/2001 and damages of at least 100,000 euro. Argues that Mr. Sison is a political refugee recognised by the Netherlands, that he is not head of the New People's Army, that his fundamental rights under articles  6, 7, 10 and 11 ECHR have been breached. Also argues that Regulation 2580/2001 is unlawful.        Application for interim relief dismissed, 15 May 2003 [2003] ECR I-2047 Jose Maria Sison 24 March 2003 T-110/03 (OJ 2003 C 146/39) Mr. Sison's lawyers requested from the General Secretariat of the EU Council all documents which formed the of the Decision to proscribe the applicant and the New People’s Army as well as access to any information regarding which Member States provided documents mentioned in the contested Decision. The Council refused on the grounds that these documents constituted "sensitive information" (and exception in the Regulation on public access to documents) and suggested their release would breach the Council's Security Regulations. Dismissed, 26 April 2005 Jose Maria Sison 30 April 2003 T-150/03 (OJ 2003 C 213/36) Seeks annulment of Council's Decision to reject Mr. Sision's lawyers' "confirmatory application" (appeal) contesting the Decision of the Council to refuse access the to documents requested above.     Dismissed, 26 April 2005 Stichting al-Asqa 19 September 2003 T-327/03 (OJ 2003 C 289/30) The Applicants sought annulment of the Decision to proscribe them and asked the Court to declare inapplicable Regulation 2580/2001 and provide related damages. They argue violation of procedural rules and the right to a fair hearing and breach of other fundamental rights.        Jose Maria Sison 12 December 2003 T-405/03 (OJ 2004 C 35/17) Joined to cases T-110/03 and T-150/03 (above). Concerns reply to "confirmatory application".     Dismissed, 26 April 2005 Faraj Hassan [UK resident] 12 February 2004 T-49/04 (OJ 2004 C 94/140) Seeks annulment of Regulation 881/2002 implementing Regulation 467/2001 (on freezing Taleban associates' assets. above) as far it relates to the proscription of the applicant, and related damages. Argues that the measures "annihilate his peaceful enjoyment of his property and his private and family life" and that the defendants "wholly failed to provide him, both before and after the decision was taken, with a fair hearing or effective remedy". Also claims that the measures violate the principle of proportionality.      Dismissed, 12 July 2006 Zubeyir Aydar on behalf of Kongra-Gel and 10 others [proscribed as alias of PKK] 25 June 2004 T-253/04 (OJ 2004 C 262/28) The Applicants seek annulment of the Decision to proscribe them, arguing "failure to apply accessible, objective criteria to the correct facts", breach of freedom of expression, breach of principles of Community law and misuse of power. Also argues failure to ensure right to a fair hearing.        Hani El Sayyed Elsebai Yusef [UK resident] 6 January 2006 T-2/06 Seeks annulment of Regulation 881/2002 implementing Regulation 467/2001 (on freezing Taleban associates' assets. above) as far it relates to the proscription of the applicant. The applicant was listed pursuant to Regulation (EC) No 1629/2005 of 5 October 2005, amending for the 54th time Council Regulation (EC) No 881/2002. The Regulation 1629/2005 was published in the Official Journal of the European Union on 6 October 2005 so the time-limit for commencing annulment proceedings expired on 30 December 2005.      Rejected (application received too late), 31 May 2006 Al-Bashir Mohammed Al-Faqih [Libyan, UK resident] 5 May 2006 T-135/06 Seeks the annulment of Regulation 246/2006 by which the applicant was inluded in the list of persons, groups and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban (pursuant to Article 2 of Regulation No 881/2002). Argues that the Council was not competent to adopt Article 2 of Regulation in that Articles 60 EC, 301 EC and 308 EC do not confer on the Council the power to do so. Also argues that the Council and the Commission misused their powers and that Article 2 of Regulation No 881/2002 as amended infringes the fundamental principles of Community law (subsidiarity, proportionality and respect for fundamental rights). Also cites infringement of an essential procedural requirement in the adoption of Regulation No 881/2002 to state adequate reasons why the measures considered necessary cannot be determined by individual Member States.      Sanabel Relief Agency Ltd [UK-based] 5 May 2006 T-136/06 Pleas and arguments identical to those in case T-135/06, above         Ghunia Abdrabba [UK resident] 5 May 2006 T-137/06 Pleas and arguments identical to those in case T-135/06, above         Taher Nasuf [UK resident] 5 May 2006 T-138/06 Pleas and arguments identical to those in case T-135/06, above    Organisation des Modjahedines du Peuple d’Iran (OMPI) [PMOI] June 2007 T-157/07 arguments not yet reported The European Court of Justice Applicant(s) Date Case reference Details Judgment Gestoras Pro Amnistía association, Juan Mari Olano Olano and Julen Zelarain Errasti     17 August 2004 C-354/04 P (OJ 2004 C 251/9 Appeal against CFI judgment in Case T-333/02, above; joined with case C-355/04 (below).     Opinion of AG recommending rejection 26 October 2006 SEGI association, Araitz Zubimendi Izaga and Aritza Galarraga     17 August 2004 C-355/04 P (OJ 2004 C 251/10) Appeal against CFI judgment in Case T-338/02, above; joined with case C-354/04 (above).     Opinion of AG recommending rejection 26 October 2006 Kurdistan Workers Party (PKK) and Kurdistan National Congress (KNK)    18 May 2005 C-229/05 P (OJ 2005 C 243/2) Appeal against CFI judgment in Case T-229/02, above. Ruling in favour of applicant (case to return to CFI) 18 January 2007 Jose Maria Sison (access to documents cases) 27 June 2005 C-266/05 P (OJ 2005 C 243/4) Appeal against CFI judgment in Cases T-110/03, T-150/03 and T-405/03, above.     Dismissed 1 February 2007 Kadi v Council and Commission 24 November 2005 C-402/05 P (Council doc. 15408/05; not yet published in OJ) Appeal against CFI judgment in Case T-315/01, above.       Yusuf and Al Barakaat International Foundation v Council 1 December 2005 C-415/05 P (Council doc. 5064/06; not yet published in OJ) Appeal against CFI judgment in Case T-315/01, above.       Gerda and Christiane Möllendorf (concerns Salem-Abdul Ghani El-Rafei, Dr. Kamal Rafehi and Ageel A. Al-Ageel) 21 February 2006 C-117/06 P (OJ 2006 C 108/6) Reference from German Courts regarding sale of property by persons listed by UN Taleban Sanctions Committee.   The European Court of Human Rights The European Court of Human Rights has held that all judicial remedies (including the EU Courts) must be exhausted before it can consider any cases - leaving applicants facing lengthy procedures. See: Judgment (23 May 2002) in Case Nos. 6422/02 and 9916/02, SEGI association, Gestoras Pro Amnistía and Others vs. Council of the European Union.