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On AG Bot’s Opinion in Kadi (IV)

Published on May 31, 2013        Author: 

Dr. Asier Garrido Muñoz is Assistant Professor of Public International Law (University of Salamanca). He has recently published Garantías judiciales y sanciones antiterroristas del Consejo de Seguridad de Naciones Unidas (Tirant lo Blanch, Valencia, 2013 here).

After Nada v. Switzerland (ECtHR) and Parliament v. Council, AG Bot has added new grounds to the debate on anti-terror lists with his opinion delivered on 19 March 2013 in the Kadi (IV) case (available here). The case has its origin in an appeal filed by the Commission, the Council and the United Kingdom against the judgment of the General Court (GC) delivered in Kadi (III). Mr Kadi and the preceding judicial decisions need no presentation here. As a consequence, this post will omit all details on Kadi (III) and the background to that decision.

The Commission (C-584/10 P), the Council (C-593/10 P) and the United Kingdom (C-595/10 P) basically supported their application on three main grounds. Firstly, the GC had erred in law in Kadi (III) by refusing to grand judicial immunity to the Regulation including Mr Kadi’s name in the 1267 list. Secondly, the standard of judicial review applied by the GC in order to supervise the inclusion of Mr Kadi in the list had been excessively demanding. Finally, the arguments of the GC concerning the violation of his rights of defense and the right to a fair trial were wrong. It must be noted that Mr Kadi was withdrawn from the UNSC 1267 list on 5 October 2012, that is, some months after the oral phase of the procedure before the ECJ had taken place. This incident provoked some surprise amongst the parties to the case but should not preclude a final ruling on a previous GC judgment.

The opinion

In essence, there are two main interests supporting AG Bot’s reasoning: enhancing cooperation with the UNSC and modulating judicial supervision of anti-terror cases. Both elements (taken together with other arguments put forward in his conclusions) would lead AG Bot to propose the annulment of the GC judgment in Kadi (III), suggesting a new standard of judicial review to be applied to the 1267 list that is full ‘in principle’ without reaching an ‘absolute’ level (see infra). This modality of review is based on AG Bot’s interpretation of previous case law on the EU autonomous anti-terror list (or ‘1373 list’  based on SC Resolution 1373, see here). In this regard, the landmark case is Organisation des Modjahedines du Peuple d’Iran (OMPI), a 2006 judgment where the GC annulled a sanctioning measure adopted against an Iranian organization.

According to the opinion, some of the grounds for attenuating the intensity of the standard of judicial review are:

–        The essentially preventive nature of the freezing measures adopted by the UNSC 1267 Committee (paragraph 68).

–        The ‘international context’ of the challenged Regulation. According to AG Bot, since the primary responsibility for the maintenance of international peace and security rests with the Security Council, EU courts must not be made ‘a forum for appeals against or reviews of decisions taken by the Sanctions Committee’ (paragraph 71). In this sense it is better to encourage ‘cooperation between institutions’ (the EU and the UNSC 1267 Committee) as provided by article 220 TFEU (paragraph 76).

–        The political character of the appreciations made by the UNSC 1267 Committee. Listings ‘are part of a political process which goes beyond any individual case’. Thus, ‘the political dimension of this process in which the Union has decided to participate calls for moderation in the performance of the judicial review by the EU judicature’ (paragraph 80).

–        The improvements in the listing and delisting procedures. AG takes particular note of the role played by the Ombudsman in the process of withdrawal of names from the list.

Thus, AG Bot proposes a different standard of review based on two main categories. On one side, the control of the external lawfulness of the contested regulation must be complete. This implies that the European judge needs to control ‘rigorously’ whether the statement of grounds is sufficient, whether the reasons for listing were communicated to the person concerned, whether those reasons are sufficient to permit him to defend himself properly, whether he was able to submit his comments to the Commission and whether the latter took them adequately into consideration (paragraph 98).

On the other side, the control of the internal lawfulness of the regulation must be restricted to an assessment on whether a manifest error has been committed (paragraphs 106-123). In other words, a limited control of the accuracy of the facts claimed (even if EU institutions do not dispose of the relevant data and evidence), control of ‘the legal qualification of the facts’ as terrorist financing and control of whether the measure adopted is not manifestly inappropriate or disproportionate in the light of the importance of the objective pursued (the fight against international terrorism).

Commentary: the middle path is not always the best one

Without neglecting AG Bot’s legitimate concerns on the primary role of the UNSC in the maintenance of international peace and security, his opinion distorts the protecting dimension of the Solange method in the context of a multilevel sanctions mechanism such as that giving place to the 1267 Committee.

I would summarize the AG’s démarche as follows: the level of the UNSC better protects international peace and security, so it is convenient to interfere as less as possible with its decision-making process. In case of contradiction between this objective and the protection of fundamental rights at the EU level, the latter must leave their place as much as possible. This maximum level is framed by the expression ‘in principle [a] full review’, proposed by the ECJ in Kadi (II). The challenged judgment of the GC in Kadi (III) had interpreted this expression in a rigorous manner. In other words, it had applied the case law on European autonomous sanctions to the 1267 list by introducing an absolute standard of review[SR1] . Such a standard is inapplicable to the 1267 list.

I disagree with this view for two main reasons.

The first refers to his interpretation of the standard of review applied by EU courts to the 1373 autonomous list in the sense of being particularly demanding. In my opinion, even though it is correct to affirm that this standard is ‘full’ as a matter of principle (as it covers all the elements of the case), the way it has been applied by the GC since the 2006 OMPI decision shows that it has also been limited in order to integrate the exigencies of the fight against terrorism to another multilevel listing mechanism.

The 1373 listing proposals are made by states on the basis of a ‘decision’ adopted by a national authority (judicial or not) that are later accepted by the Council (article 1(4) Common Position 2001/931/CFSP). As post-OMPI case law has revealed, the Council is particularly attached to the assessment of the facts made by the national authorities. Moreover, the burden of proof required to demonstrate that a sanctioning measure is unjustified is very demanding with regard to the affected individual. The GC has constantly affirmed that in case of an initial decision to freeze funds, the Council will only have to give evidence that a national authority has adopted a ‘decision’ against a person or entity (in the sense of article 1(4) CP 2001/931/CFSP). If the decision is a subsequent one (i.e. a decision to maintain a name already in the list), it will be enough if EU authorities show that the measure is still justified ‘in the light of all the relevant circumstances of the case’. This means basically that they will only need to show that the national decision justifying the initial inclusion in the list is still in force (as was clear in People’s Mojahedin Organization of Iran, judgment of 23 October 2008, here).

This premise realigns the review test from a normal one of proportionality to one of manifest error. Such a test is not very different from the one defended by AG Bot in Kadi (IV) but still achieves a better level of protection of the individual as it considers all the elements of the case and allows for access to the evidentiary documents (at least as a matter of principle). Difficulties with regard to access to secret evidence in the hands of the 1267 Committee member states could partially be solved by means of an ECJ procedure to assess in camera all the relevant material (as suggested by AG Sharpston in her opinion in France v PMOI in the context of the 1373 list, here). However, the effectiveness of such a mechanism would depend on the willingness of those UNSC states not bound by any EU legal principle (loyal cooperation is not a UN legal principle as such).

My second objection concerns precisely this latter point: AG Bot’s emphasis on applying the logic of loyal cooperation of the 1373 list to the relationship with the 1267 Committee. As a matter of principle, both mechanisms can be described as ‘composite procedures’ as each one relies on two decision-making levels. Nevertheless, it is evident that the human rights guarantees offered by the first decision-making level of the Al-Qaeda mechanism (the 1267 Committee) cannot be equated with the first decision-making level of the 1373 mechanism (see infra). Thus, in my view, ECJ intervention should remain stricter in the case of the 1267 list.

The existence of judicial safeguards at the national level renders ‘absolute’ full judicial review of the 1373 list superfluous. Should a particular initial ‘decision’ made by a national authority be defective, such a task belongs to national courts and not to the ECJ (with the ultimate intervention of the ECtHR). This interpretation is in accordance with the philosophy of previous judgments delivered by EU courts in the context of other EU composite administrative procedures (France Aviation v Commission, Eyckeler & Malt AG v Commission or Oleificio Borelli v Commission) and can be summarized in the following principle: ‘absolute’ full review (judicial or administrative) should be in the hands of the authority ‘who determines the facts giving rise to an adverse decision’ (see Sabino Cassese here on page 33).

This solution is not applicable to the 1267 list. At this point AG Bot’s opinion is even paradoxical insofar as it recognizes without ambiguity the ‘essentially political nature of the appreciations made by the 1267 Committee’ (p. 80), an argument that hampers his recommendations on the extension of the principle of loyal cooperation to the relationship with the UNSC. This characterization of UN procedures leaves it crystal clear that the 1267 Committee does not offer a minimum level of independence and impartiality equivalent to European (and I would also say international) standards. To put it in Habermasian terms, the 1267 apparatus does not fulfill the ‘freedom-guaranteeing’ function that EU states’ legal systems – equipped with a complete system of administrative and judicial resources – do accomplish.

The Solange test was not framed so much in terms of outcome ‘effectiveness’ but mainly rests on a iuris tantum presumption of human rights compliance if equivalent standards and supervisory mechanisms are offered by another legal order. This deference to alien determinations – legal or political – is conditioned on a presumption of ‘human rights-reasonableness’ that makes a permanent judicial exequatur pointless or even counterproductive. The Ombudsman mechanism does not reach this level of reasonableness, since states are the ultimate masters of the whole system, which remains far from respecting elementary considerations of waffengleichkeit (equality of arms) and due process.

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