The Court of Justice of the EU is expected to confirm that the sanctions imposed by the Council of the EU on Hamas and the Liberation Tigers of Tamil Eelam (LTTE) were inadequately founded, as they were extended on the basis of old decisions of the competent authorities and new facts related only by the press or found on the internet, Advocate General Eleanor Sharpston found, on Thursday 22 September.
What elements should the Council takes as its basis to justify its decisions to put or to keep a person or entity on the EU's list of terrorist organisations? This was the central question the Court of Justice was called upon to answer in two separate cases already handled by the General Court of the EU, but which will be the subject of a single judgment in the framework of appeals brought by the Council (C-599/14 P and C-79/15 P).
In October 2014, the General Court found that the Council had made fundamental procedural errors by including LTTE on the list of terrorist organisations (see EUROPE 11179). The institution had, in particular, failed to verify first of all that the decisions of the competent authorities (from India, in this case), that had been used to justify its decision, had been made in full respect of the protection of defence rights and the right to effective legal protection equivalent to that which is guaranteed in the EU. There was an almost identical scenario in December 2014, when the General Court identified procedural errors in the Council's prolongation of the sanctions against Hamas on the basis of factual elements taken from the press and internet.
Was the General Court right in both of these cases? According to Sharpston, it was. She found that when the Council bases a decision on a third-party authority in order to include a person or entity on the list, it should clearly state how the legal order of the third state in question offers a level of protection equivalent to that in the EU, at least as regards defence rights and rights to effective judicial protection.
When attempting to extend the period of time for which the person or entity is kept on the list, which it usually does every six months, the Council should base itself on a new decision of an authority or demonstrate how the initial or subsequent decision can be applied. In all cases, it must verify the "actual reasons" on which the decision of the authority in question was based. Finally, it is clear that the Council should never rely on allegations of terrorism not included in a decision or taken from press articles or the internet. (Original version in French by Jan Kordys)