Judicial control of restrictive measures in the EU

ERAERA25 September 201525 September 2015

Marc van der WoudeMarc van der Woude

IntroductionIntroduction

I.General observations II.The scope of the reviewIII.Practical observations

NB: all comments are purely personal focus on last two years

I. General observations: the legal basis for the review

As a rule no judicial control by ECJ on CFSP issues, except where restrictive measures against legal and natural persons (275 TFEU)

CFSP decision Member States implement decision TFEU part , Regulation ex 215 TFEU

Follow on UN sanctions and autonomous sanctions UN implementation, no reason not to control (Kadi I, C-

402&415/05 P)

I. General observations: categories and interactions

Multi layered sanctions (typically terrorists, such as Al Qaida, Hamas, Tamil Tigers)

Interactions with UN, national systems and/or third country decisions (reasons for listing in decision of competent authority with subsequent EU control: see Hamas, T-400/10)

EU level sanctions (e.g. country sanctions (Iran, Syria, Byelorussia):

System of its own, with listing criteria and decisions applying them

General decisions and implementing decisions (who does what ? NIOC T-578/82))

Initiative with Member States

I. General observations: the activity of the General Court

  2010 2011 2012 2013 2014 2015 (Q2)

Incoming 21 93 59 41 68 35

% 3.3 12.8 9.5 5.1 7.4 9.3

outgoing 10 32 42 40 68 32

I. General observations: the activity of the Court of Justice

In period 22 judgments rendered on appeal of which 7 leading to annulment of GC ruling

  2010 2011 2012 2013 2014 2015

incoming 7 17 6 7 7 10

appeals 3 6 5 6 6 8

I. General observations:formal and substantive issues

A blurred distinction : Kadi II (C-584, 593 and 595/10 P)•Formal rights : legal basis, procedural safeguards and reasoning (grounds 117 and 118)•Control of veracity : access to underlying information (Kadi II, ground 119)

Formal issues becoming less relevant: •Context may help to explain : Bamba C-417/11•Outcome oriented approach: Persia International Bank T-439/10,

II. The scope of review : the intensity of review

Kadi II: full review is the rule

However, Distinction general listing criteria and individual

decision (NIOC T-578/12) One reason is enough (Kadi II and Kala Naft,

C-348/12 P) Balancing act on the basis of available

information (Kadi II, ground 125, see below)

II. The scope of review : the issue of secret documents

Kadi II, grounds 125-129, balancing act: legitimate security reasons procedural safeguards

if authority refuses, on the basis of available infoif secret, alternatives

New rules of procedure : Article 105 unlike Article 103, right to refuse and right to withdraw possibility to take confidential elements into consideration

Link with legality review (ground 111 Kadi II)

II.The scope of review : the evidence required

Kala Naft : need to take account of regulatory framework (link oil industry

and proliferation relying on non-contested elements in the file

Anbouba, C-630/13 P : no presumptions; but bundle of converging indicia to be interpreted in light of context (war, urgency, difficulties to collect evidence)

Bouchra Al Assad, T-202/12 : family links if manifest and foreseen by criteria

Bateni, T-42/12: freshness of the evidence

III.Practical observations: what do applicants want ?

IOEC, T-110/12 : reasoning and substance

Ayadi, T-527/09 RENV, but it must sufficiently be clear that applicant contests substance

III. Practical observations: are the sanctions targeted?

No possibility for individuals to challenge general measures, only if 263 TFEU with possibility of 277 TFEU (see Hemmati, T68/12)

Distinction between general and targeted is blurred when using very wide criteria : support to regime, control by entities already listed

Paradoxical results: burden of proof seems lower for indirect support than for direct support

III.Practical observations: is judicial control relevant?

High annulment rates, but many subsequent re-inscriptions and/or new criteria, leading to an ongoing stream of litigation

ne bis in idem for preventive measures limited in time ?

The effects of the annulment ruling in time, diverging practices application of Article 60 Statute to Regulation and by analogy to

Decision Article 264 TFEU with various periods, National Tanker T-

565/12, Hamas and Sharif University T-181/13

Actions for damages, Sepahan, T-384/11