Brussels, 06/06/2012 (Agence Europe) - In the fight against terrorism, the Council cannot freeze funds if there are ongoing prosecutions against the person or entity concerned. On this basis, the Court of the EU legitimately annulled the acts of the Council which allowed the funds of the Dutch Al-Aqsa foundation to remain frozen, as the Dutch State had repealed measures against it.
In these conclusions, which it returned on Wednesday 6 June, in two joined cases between the Al-Aqsa Foundation (Stichtig Al-Aqsa) and the Council of the EU and the Dutch State (C-539/10 P and C-550/10 P), Advocate General Verica Trstnejak proposes that the Court of Justice uphold the judgment of the General Court of September 2010 (CaseT-348/07) to this effect. The latter court had annulled a series of Council acts from the years 2007 to 2009, which kept the foundation on the EU list of terrorist organisations, allowing its assets to remain frozen, on the grounds that the Netherlands had annulled the ministerial ruling against Al-Aqsa in 2003, an act which effectively constituted the basis for subsequent measures taken by the Council. In its ruling, the Court said that “the Council should have drawn the logical conclusion from the repeal of the national fund-freezing measure and found that there was no longer any 'substratum' in national law that justified … keeping the equivalent Community measure.” The Netherlands and Al-Aqsa, for different reasons, appealed against this ruling and the Court has been asked to examine the conditions for assets to be frozen.
In her conclusions, Trstnejak confirms the Court's interpretation. She stresses that the Union's measures to fight terrorism are not a matter for the Council's discretion. Rather, the Council can freeze the funds of persons and entities on the basis of the suspicion that they are supporting terrorist activities only if a member state has at least instigated investigations against such persons or entities. Since it is ultimately those investigations alone which justify the freezing of funds by the Council, it must unfreeze those funds if, in accordance with its duty regularly to review the measures adopted, it determines that the national decision has ceased to apply or the investigations being conducted at a national level are no longer being pursued. In this case, it could not keep Al-Aqsa on the list of terrorist organisations once the Netherlands had repealed, in August 2003, the ministerial regulation relating to the Foundation and in view of the fact that the Council did not check whether there was any other national investigation that might have constituted grounds for freezing the Foundation's assets. On these grounds, Trstnejak proposes that the Court dismiss the appeal by the Netherlands and the one brought by Al-Aqsa, which she considers inadmissible as it was directed not against the outcome of the judgment by the General Court, but against the considerations contained within it. (FG/transl.fl)