On Wednesday 26 July, the European Court of Justice (CJEU) found (Case C-79/15) that the General Court had made an error of law on 17 December 2014 (Case T-400/10) by annulling the restrictive measures against Hamas, and it referred the case back to the General Court. The CJEU upheld, however, the ruling of the General Court on 16 October 2014 (Case T-208/11 and T-508/11) which adopted a similar position on the Liberation Tigers of Tamail Eelam (LTTE).
In 2001, the EU Council adopted a decision by which the Palestinian organisation Hamas was included on the European list of terrorist organisations ("the list"). This decision involved an assets-freeze for Hamas. The EU Council did the same in 2006 against the LTTE, a Sri Lankan organisation which fought the government until its defeat in 2009.
While neither Hamas or LTTE contested their inclusion on this list at the time, they subsequently took action to contest their retention on it, with the contested decisions taking place in 2010 for Hamas and between 2011 and 2014 for the LTTE.
In the above-mentioned rulings of the General Court (see EUROPE 11779, 11220), the judges annulled the restrictive measures taken against the two organisations after noting that the decisions to retain them on the list of terrorist organisations had been taken on the basis of information diffused by the press and internet, and not on the basis of national decisions from competent authorities, as required by Common Position 2001/931/CFSP of 27 December 2001). The Council then appealed to the CJEU to annul the two rulings in question.
The CJEU states in its ruling that the Council can retain an organisation on the list if it considers that there is an ongoing risk of this organisation being involved in the terrorist activities which justified its initial listing. The judges affirm that the Council was obliged to rely on more recent material than the national decisions which justified the initial listing of Hamas and the LTTE. Under Common Position 2001/931/CFSP, the CJEU finds, however, that only the initial entry of an organisation on the list must be based on a national decision by a competent authority and that the Council can therefore rely on other elements to justify the retention of the organisation on the list. The organisation concerned can then contest all of these elements in front of the courts of the EU.
With regard to Hamas, the General Court only relied on the lack of national decision to justify its ruling and the CJEU therefore annuls the General Court's ruling and refers the case back to the General Court. By contrast, although the ruling of the General Court involved an error of law concerning the LTTE, the CJEU does not annul it as the Council did not justify its decision at the time by which it found that the LTTE intended to continue its terrorist activities, despite its military defeat. The CJEU also upholds the ruling of the General Court on the LTTE, in that the judges affirmed that the Council could only rely on national decisions from third states to justify the listing of an organisation if the decision concerned was taken in respect of the rights of defence and the right to legal protection, which must be indicated by the Council in its decision.
The CJEU has thus upheld the assets freeze on Hamas, but not that on the LTTE. (Original version in French by Lucas Tripoteau)