IranCase lawsanctions

Fulmen case: defense secrecy or law?

Cju logo(BRUSSELS2) In the Fulmen case on which the European Court of Justice ruled today (November 28), a delicate question was at stake. How can we communicate to judges evidence justifying a decision on sanctions, when the motivation of the “28” is based on documents classified “Secret”? In other words, which principle prevails: Defense secrecy and state security or jurisdictional power and the protection of litigants? The balance of the Court of Justice naturally tips in favor of the second criterion.

But if it agreed with the judges of first instance by confirming the cancellation of the freezing of the assets of the company Fulmen and its director, Mr. Mahmoudian (*), it still, without expressly saying so, invalidated their reasoning and brought the “cursor” a little more to the center. The judges notably recalled a more traditional case law, which allows a certain reconciliation of the necessary security of the State with the judicial protection of individuals. This gives the Council's lawyers the possibility of correcting, without significantly changing their practices, the implementation of this type of sanctions. Note that the Council was supported in this matter by two member states: France and the United Kingdom.

The construction of the secret site of Qom

The Fulmen company, specializing in electrical equipment, is in fact suspected of having intervened on the Qom/Fordoo nuclear site, an installation “ built clandestinely, without being declared to the IAEA (therefore) in violation of Security Council resolutions” as recalled by the Council and France (which intervened in the procedure).

Are plausible reasons sufficient?

The Council felt that it had fulfilled its obligations by considering that the reasons presented were " probable ". He relied on information and file elements “ communicated by a Member State ", but which the State had not authorized to be communicated to the judges. For the French, this secret nature is justified if a Member State considers "necessary for his security not to reveal confidential documents ". For the United Kingdom, which was also intervening in the procedure, “ Since the Union has not yet put in place procedures allowing the communication to the Tribunal of confidential documents, it would be appropriate for the Tribunal, in the context of this conciliation, to pay greater attention to the interests of peace and security than those of a person subject to restrictive measures. It recalls that the measures in question are preventive and not penal”.

The security of the Union…

For the Court, overriding considerations relating to the security of the Union or its Member States”. may justify the non-communication of certain evidentiary information. But this simplified procedure is not without safeguards. Member States must indicate “ the specific reasons for objecting to such communication " or, failing that, communicate to the judge of the Union " a summary of the content of the confidential information in question”.

In all cases, the Court specifies, it is up to the Union judge “ to appreciate "if 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 his observations" are likely to affect the probative value of the confidential evidence”.

In this case, the Council had not produced any evidence or a summary of the confidential information before the judge. And, the latter had to rely on "the only element that had been communicated to him ”, namely the allegation appearing in the motivation for the acts concerned. The cancellation of the sanctions is therefore valid.

  • Download the judgment C-280 / 12 P Council / Fulmen and Mahmoudian

(*) Judgment of March 21, 2012, Fulmen and Mahmoudian v Council (joined cases T-439/10 and T-440/10).

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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