Case lawPolice Terrorism

The Court accentuates its anti-terrorist jurisprudence

Cju logo(BRUSSELS2) The Court of Justice of the EU confirmed, on Thursday (July 18), the judgment of the court of first instance in the anti-terrorist lists case (Kadi case). The judgment was expected because it comes in a case that is both symbolic and important, which should lead to certain changes in the way the European Union's anti-terrorist lists are managed. The Court thus asserts itself more and more as a guardian of public liberties. And this judgment is just one more stone in this jurisprudential construction.

The Grand Chamber convened

It was the Grand Chamber, one of the most solemn sessions of the Court, which ruled. And no less than a dozen Member States (Austria, Bulgaria, Denmark, Spain, Finland, Hungary, Ireland, Italy, Luxembourg, Netherlands, Slovakia, Czech Republic) came to support the two European institutions (Commission and Council) as well as the United Kingdom which had lodged an appeal.

Kadi: the instigator of jurisprudence

Mr. Kadi was one of the first judgments to reverse a case law of the Court, until then very cautious, since giving quasi-jurisdictional immunity to decisions taken by the European Union in application of the UN sanctions committee.

This new Kadi judgment takes things a little further since it not only requires a formal control of the legality of the decision (motivation, respect for the rights of the defense, etc.) but maintains that it is necessary to examine the reasons more closely. of this decision. In doing so, the judges refused to follow their advocate general who advocated a more flexible application of fundamental rights.

'None of the allegations made in the statement provided by the Sanctions Committee is such as to justify the adoption, at Union level, of restrictive measures against it, either because insufficient motivation, i.e. the absence of information or evidence to support the reason in question in the face of the detailed denials of the person concerned., estimate the judges. Their reasoning is carried out according to six steps.

Explanatory memorandum and rights of defense

The principle is that the European Union must communicate to the person concerned the elements underlying its decision. Thus, it must be able to obtain at least “ the explanatory memorandum provided by the Sanctions Committee" to support his decision. In addition, the data subject must usefully make known his point of view with regard to the grounds held against him and must consider, " in the light of the observations made by the person concerned, the merits of these grounds".

Request for information to the sanctions committee must be made by the EU

It is " to the authority to request the collaboration of the sanctions committee” and — through the latter — of the member of the UN having proposed the inclusion of the person concerned on the summary list, for “ obtain the communication of information or evidence, confidential or not, enabling it to carry out a careful and impartial examination of the merits of the reasons in question ».

Judicial review of grounds

As for the Union judge, he has the power to review the legality of the reasons. In particular, he must appreciate if these are likely to support the inclusion of the person concerned on the list drawn up by the Union”. And, to that end, he may request that authority to present such information or evidence to it”.

The burden of proof

In the event of a dispute, it is up to the authority “ to establish the merits of the reasons given against the person concerned, and not for the latter to provide negative proof of the absence of merits of these reasons”. If the authority is unable to grant the request of the Union judge, the latter must “rely solely on the elements communicated to him”. That's to say " the information contained in the explanatory memorandum provided by the Sanctions Committee, the observations and any exculpatory evidence produced by the person concerned as well as the authority's response to these observations..

Extensive control

If these elements do not make it possible to establish the merits of a reason, the judge of the Union must " dismisses the reason as a support for the decision to register or to maintain the registration in question ". If, on the other hand, the competent authority of the Union provides relevant information or evidence, the judge of the Union " must verify the material accuracy of the facts alleged in the light of this information or elements and assess the probative value of the latter according to the circumstances of the case and in the light of any observations presented, in particular, by the person concerned about them ».

Non-disclosure of reasons for security reasons

Certainly " overriding considerations affecting the security of the Union or its Member States or the conduct of their international relations may prevent the communication of certain information or certain evidence to the person concerned ". But this consideration cannot be systematically opposed to magistrates. The Union Judge, to which the secrecy or confidentiality of this information or elements cannot be opposed., has the duty to verify, by examining all the legal and factual elements provided by the competent authority of the Union, the validity of the reasons invoked by this authority to oppose such communication..

If the judge concludes that these reasons do not preclude the disclosure, at least in part, of the information or evidence in question, he gives the " possibility for the competent authority of the Union to communicate them to the data subject.. If this authority opposes the communication of all or part of this information or elements, the judge of the Union will then proceed to the examination of the legality of the contested act on the basis " of the only elements that have been communicated to this person”.

The search for a balance between public freedoms and security

If it turns out that the reasons invoked by the competent authority of the Union " effectively oppose the communication to the data subject of information or evidence produced before the EU judge”, it is then an evaluation of the balance between public freedoms and security that the judge leads. It is necessary that " appropriately balance the requirements linked to the right to effective judicial protection and those arising from the security of the Union or its Member States or from the conduct of their international relations..

It is possible to resort to other possibilities “ such as providing a summary of the content of the information or evidence at issue ". But in any case, the judge will have to assess whether and to what extent the absence of disclosure of confidential information or evidence to the person concerned and the correlative impossibility for the latter to put forward their observations with regard to them are likely to influence the force evidence of confidential evidence”.

(Nicolas Gros-Verheyde)

Download the judgment Kadi C-584/10

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).

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