Luxembourg, 21/09/2005 (Agence Europe) - The Court of First Instance of the EU has published a press release on the ruling " Ahmed Ali Yusuf, Al Barakaat International Foundation and Yassin Abdullah Kadi" which it returned on 21 September, and rejects as unfounded the case brought by Somalians of Swedish nationality and the Bank Al Barakaat, who wanted to be removed from a list of terrorists whose assets had been frozen. This list, which was drawn up by the Council of the EU and modified by the Commission in 2001 in a Community regulation, took the list of the list drawn up by the UN Taliban Sanctions Committee in its entirety. A re-examination procedure of the dossiers led to the unblocking of the funds of two people, Mr Aden and Mr Ali, who withdrew their recourse before the Court (see EUROPE 8226). This contested list was replaced by an autonomous EU list in December 2001, but this old case- it was brought before the Caught in 2001- has given the Court of First Instance the opportunity to return to issues of law, in a long press release, which is summed up as follows.
The European Community's competence to impose the freezing of assets of individuals in the framework of the fight against international terrorism. "As long as they are required by the UN Security Council, these measures largely escape from jurisdictional control and as long as they do not violate the fundamental rights of the person as universally recognised", the Court indicates.
Competence of the Council to impose economic sanctions on individuals. The EEC treaty allows the Council to impose economic and financial sanctions on third countries when a common position adopted by the EU and the common foreign and security policy allows for this. The Council is also competent in similar conditions to impose economic and financial sanctions such as the freezing of assets of individuals as part of the fight against terrorism, according to the Court.
Paramoutcy of United Nations Law over Community Law. Under international law, the obligations of the Member States of the UN in virtue of the Charter of the United Nations have paramountcy over all other obligations, including their obligations under the European Convention on Human Rights and the EEC treaty. This paramountcy extends to decisions of the Security Council. Although the European Community is not a member of the UN, it is also bound by obligations stemming from the Charter of the United Nations, in the same way as its Member States are. The Community may not violate the obligations incumbent on its Member States in virtue of the Charter, nor prevent them from being fulfilled. It must adopt all the necessary provisions to allow its Member States to come in line with these obligations, states the Court.
Scope of the review of lawfulness carried out by the Court. The challenge regulation implements decisions of the Security Council. Given the rule of the paramountcy of UN Law over Community law, these decisions fall, in principle, outside the ambit of the Court's judicial review, and the Court is therefore not authorised to challenge their lawfulness in terms of Community Law or the fundamental rights as recognised in the Community legal order. On the contrary, the Court is bound to interpret and apply this law in a way which is compatible with the obligations of the Member State under the Charter of the United Nations, as far as possible. However, the Court is empowered to check the lawfulness of the contested regulation and the lawfulness of decisions of the Security Council implemented by the regulation, in the light of the higher rules of international law falling within the scope of jus cogens, understood as a peremptory norm of public international law from which neither the Member States nor the bodies of the United Nations may derogate. It includes, in particular, the mandatory provisions intended to secure universal protection of fundamental human rights, the press release states
The applicants' fundamental rights protected by jus cogens. The freezing of assets does not violate the fundamental rights of the Swedes and of the bank as protected by jus cogens: the contested regulation makes express provision for possible derogations, at the request of interested persons, allowing access to funds necessary to cover basic expenses. It is therefore neither the purpose nor the effect of those measures to subject the applicants to inhuman or degrading treatment.
Nor have the applicants been arbitrarily deprived of their right to property, in so far is that right is protected by jus cogens. The freezing of assets is an aspect of the legitimate fight in the United Nations against international terrorism, and is a precautionary measure which, unlike confiscation, does not affect the very substance of the right of the persons concerned to property in their financial assets but only the use thereof. Furthermore, the resolutions of the Security Council provide for a periodic re-examination mechanism of the general sanctions regime and a procedure allowing interested parties to put their case, for re-examine by the Sanctions Committee, with their State as intermediary.
As regards the right of defence, the Court continues, no standard under the jus cogens seems to require A Personal Hearing of the Parties by the Sanctions Committee. As it is a precautionary measure limiting the availability of assets, the respectful of fundamental rights of the interested parties, it does not require the facts and evidence adduced against them to be communicated to them, where the Security Council is of the view that that there are grounds concerning the international community's security that militate against it. The Court notes, however, that the persons concerned may at any time address a request to the Sanctions Committee, through their national authorities, to be removed from the list of persons affected by the sanctions decided upon by the Security Council.
As regards the right to effective judicial review, the Court states that, in respect of the action brought by the applicants, it has carried out a complete review of the lawfulness of the contested regulation with regard to observance by the Community institutions of the rules of jurisdiction and the rules of lawfulness and the essential procedural requirements which bind their actions. It has also reviewed the lawfulness of the regulation from the viewpoint of procedural and substantive appropriateness, internal consistency and whether the regulation is proportionate to the Security Council's resolutions. The Court has also reviewed the lawfulness of the regulation and, indirectly, the lawfulness of the resolutions of the Security Council in the light of jus cogens.
The Court concludes that it is not up to it indirectly to check the conformity of Security Council resolutions with the fundamental right as protected by the Community legal order, nor to verify the absence of an error of appreciation of the facts and elements of proof retained by the Security Council in support of the measures adopted, nor indirectly to check the relevance and proportionality of these measures. In this way, and in the absence of an international jurisdiction charged to rule on cases brought against decisions of the Sanctions Committee, the applicants have no means of legal recourse. Nevertheless, this gap in the legal protection of the applicants is not, in itself, counter to jus cogens. The Court states that the right of access to court is not absolute. In this matter, it clashes with the legal immunity enjoyed by the Security Council. The interest of the applicants to have their cause heard by a court is not sufficient to take priority over the central general interest of international peace and security in the face of a threat which has been clearly identified by the Security Council.