Brussels, 25/03/2013 (Agence Europe) -Advocate General Yves Bot has recommended that the Court of Justice of the EU repeal the 2010 ruling (the “Kadi II” ruling, see EUROPE 10226) in which the General Court, in pursuance of a long legal battle, repealed the regulation of the Commission maintaining the freezing of the assets of Mr Yassin Abdullah Kadi under its anti-terrorism measures. In conclusions returned on 19 March (cases C-584/10 P, C-593/10 P and C-595.10P), he takes the view that the full and rigourous jurisdictional checks carried out by the General Court into the legality of this kind of legal act of the Union implementing resolutions of the UN Security Council are by their nature inappropriate to the field of anti-terrorism.
In its 2010 ruling, the General Court repealed the regulation referred to concerning Mr Kadi, taking the view that the defence rights and, in particular, the ownership rights of the individual in question had been infringed. On the basis of the “Kadi” ruling of the Court of 2008 (see EUROPE 9733), it took the view that it was required to carry out a full and rigorous jurisdictional check on the legality also indirectly impacting upon the basic assessments carried out by the sanctions committee, and upon the underlying evidence.
In his conclusions, the Advocate General states that the Court correctly laid the principle for the jurisdictional checks on the acts referred to in 2008, but failed to define their nature. He explains that there are several reasons to oppose the full and rigorous jurisdictional check as required by the General Court in the contested ruling being retained as a rule: - the preventative nature of the measures in question; - the international context in which the contested act took place; - the need to reconcile the requirements of the fight against terrorism with the imperatives of the protection of fundamental rights; - the political criteria taken into account in the decision of the sanctions committee to include an individual on the list of those targeted by the anti-terrorism measures, etc. In addition, the procedure before the sanctions committee now offers a sufficient level of information for the interested party and sufficient guarantees as to the basis for the decisions made. It is, therefore, not necessary for the Union judge to carry out an in-depth check on the basis for these decisions ; he/she could limit himself/herself to verifying that inclusion on the list of terrorist organisations is not based on an insufficient or incorrect summary of reasons. He goes on to suggest that: - the formal and procedural aspects of the contested act (communication to the individual in question, respect of right to defence, etc) are subjected only to a normal level of verification; - the internal legality of the act (absence of manifest error) is subjected only to a limited check (no requirement for in-depth check of evidence behind the decision of the sanctions committee). On these bases, Bot recommends that the Court of Justice repeal the ruling of the General Court. (FG/transl.fl)