Case lawPolice Terrorismsanctions

The blacklists of terrorists, international politics according to Yves Bot. Is that so…

(BRUSSELS2) Highly interesting, but also very questionable, it is in these terms that we can describe the conclusions just submitted this morning (January 31), the Advocate General of the European Court of Justice, Yves Bot, on the judges' desk, concerning the regulation transposing a Security Council resolution authorizing sanctions (asset freeze, visa ban) with regard to a list of people suspected of belonging to the network of Osama bin Laden, Al-Qaeda or the Taliban. In the argument, legal but also quite political, we always feel present in Yves Bot, his past as public prosecutor – in Bastia or, ultimately, in Paris -, a position all the more sensitive as it is in the capital's public prosecutor's office where international terrorism cases are centralized.

What the Parliament disputes

This case arose following a complaint by the European Parliament against the Council of Ministers of the EU. The Parliament is, in fact, contesting the legal basis of the regulation adopted by the Council of the EU. He considers that, after the entry into force of the Lisbon Treaty on December 1, 2009, this text should not have been on the basis of the common foreign and security policy (article 215 § 2 TFEU) but on the basis of the provisions relating to the prevention of terrorism and related activities which fall within the area of ​​freedom, security and justice (Article 75 TFEU). The terms may seem abstruse. But it is not, just, a debate of legal aesthetics... The choice of procedure has a concrete impact on the extent of the role of parliament in the adoption of the act: in the first case, he is just “informed” by the Council; within the framework of justice policy, it is associated with decisions and co-decides, with the power of amendment, or even veto in the end.

Let us point out that in this matter, France, the Czech Republic, Sweden and the European Commission came to the Council's aid. Denmark, which had indicated this intention, then withdrew.

The general competence of the CFSP

For the Advocate General, since the Treaty of Lisbon, action by the Union on the international scene aimed at combating international terrorism in order to maintain peace and security at international level " must be attached to the CFSP. Under this "the competence of the Union in the field of the [CFSP] covers all areas of foreign policy as well as all questions relating to the security of the Union, including the progressive definition of a common defense policy which can lead to a common defence”. And " although the Lisbon Treaty did away with the pillar structure that existed previously, it did not affect the demarcation between the CFSP and the AFSJ. On the contrary, the importance of a line clearly delimiting these two areas was underlined by the Treaty on European Union »

The CFSP is a natural way of transposing UN resolutions

For Yves Bot, the aim pursued by the 2009 regulations does not “ should not be done in isolation » but take into account the acts to which it refers and with which the Advocate General establishes a link, that is to say in chronological order: resolution 1390 of the UN Security Council in 2002, the common position based on the common foreign and security policy (402) then the implementing regulation (881/2002) and its amended regulation (1286/2009). All these acts aim “in reality, at a single goal, that of fighting international terrorism” by cutting off its financial resources. For him, it is the CFSP which allows a “interaction” between decisions taken at United Nations level and those taken at Union level. The Union is limited to taking up the list adopted within the UN sanctions committee. The CFSP “empowers the Union to adopt restrictive measures in the fight against terrorism".

Practical considerations...

There is also a more practical consideration in the Advocate General's analysis: the CFSP is the “better adapted to the variety of actions” which can be carried out by the Union in order to combat international terrorism. This allows the Union to “take general measures (measures restricting the movement of the persons concerned, prohibiting the sale of arms, for example) without limiting these only to measures concerning capital movements and payments”.

(comment) Questionable conclusions

Even if the Attorney General's analysis defends a certain point of view, that of the prosecutor who pursues terrorists and wants to very quickly block his action, we can however have a completely different point of view. If the aim of the regulation aims to complete international action, its transposition does indeed follow a concrete objective: freezing the funds in the territory of the European Union of certain people and companies which can commit a terrorist act not only outside the Union but well within the Union. We are indeed in an area of ​​justice and policing and not diplomatic or defense action which are the two spheres of action of the CFSP. If we were to follow the Advocate General's point of view, we could generalize this principle to other areas. Thus the application of the Kyoto protocol would not be about the environment or energy but about international law, just as the transposition of IMO rules would not be about maritime, or the Single Sky transport agreements, etc. . Which would thus be a turning point in the Court's jurisprudence.

The reality of Yves Bot's reasoning is that it does not follow so much legal logic but also practical objectives: a PESC decision is quicker to implement, and without risk of "online loss", than a decision co-decided with the European Parliament. However, can we twist the law to achieve what is one of the fundamental rights? We can doubt it...

On the other hand, it would be interesting for the European Parliament – ​​if it really wishes to have competence on these sensitive subjects which require a rapid reaction – to develop a specific decision-making procedure like the “fast track” procedure which The Court of Justice is empowered to deal with certain sensitive issues. It must imagine innovative solutions to adopt this type of measures with shortened deadlines for the preparation of the report and adoption in committee (in 48 or 72 hours for example) or the meeting of a special public liberties committee responsible for transpose these international resolutions – often quite repetitive. Because just as democratic examination cannot be completely ruled out, the fight against terrorism cannot suffer from the usual delays in discussion within democratic representation.

Download the conclusions, here

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).