4th Year LLB student, University of Aberdeen
This article examines the legal framework for the adoption of restrictive measures against individuals in the European Union, specifically in the context of the Union’s Common Foreign and Security Policy and its counter-terrorism agenda. Economic sanctions like trade bans, prohibition of capital and service transactions, and interdiction of transport and communications are widely used by countries to exercise pressure and produce a change in the political behavior of another state or group of states. ‘Smart’ or ‘targeted’ sanctions, on the other hand, have as their objective specific natural or legal persons rather than the population as a whole and can vary from sectoral embargoes and visa bans to the freezing of financial assets. Such sanctions have not been limited in their use to the exercise of pressure on a state but have also been deployed as a primary tool to combat terrorist groups.
The European Union has fully adopted these trends in international sanctions but the regime has been under attack in the EU courts for the past 8 years in the Kadi litigation. One of the most contentious issues has been whether there exists a legal basis in the Treaties that permits such measures in the Union. In other words, have the Union’s institutions, and most significantly the Council of Ministers, acted outside their jurisdiction on the international scene and infringed the values of democracy and the rule of law that are the building blocks of the EU?
The Kadi cases have been the most prominent external actions cases at the EU courts in the past decade. They trace back to 1999 when the Security Council (SC) imposed ‘smart’ sanctions on individuals and private entities associated with Bin Laden, Al-Qaida, and the Taliban. In order to implement the ‘targeted’ sanctions system in the EU, the Council of Ministers adopted Regulation 881/2002, which has been contested on multiple grounds in the courts in Luxembourg (the latest and final judgment in Kadi II was delivered on July 18th).
An intriguing aspect of the cases concerns what the legal basis is (the Article(s) in the Treaties) for the adoption of restrictive measures because it largely determines the decision-making process for the legislation. Consequently, this has a direct bearing on the level of inter-institutional scrutiny and review of these sanctions. Throughout the life of the Kadi saga, the question has ultimately boiled down to how measures against terrorists should be understood – are they a matter of international security and foreign relations or are they a tool to defend the internal security of the EU? I will explain this point in more detail below.
The regime for economic sanctions prior to the Lisbon Treaty
The European Union operates under a rule of law, which means that any action for the adoption of a given policy must have a legal basis in the Treaties. This ensures that the law-creation process is founded in texts that have been approved voluntarily and democratically by all EU member countries. The rationale for the choice of the legal basis of Regulation 881/2002 was the matter of departing considerations by the General Court, Advocate General Maduro, and the CJEU in the Kadi I cases.
The sanctions regime under the Maastricht Treaty, which applied at the time the measures were implemented against Mr. Kadi, did not include any specific provisions for the adoption of ‘smart sanctions’ against individuals. Therefore, the regime was developed on the basis of Article 301(1) EC and 60(1) EC. Together they provided that the interruption or reduction of economic sanctions with third countries in the framework of the Common Foreign and Security Policy (CFSP) is to be decided by the Council on a proposal from the Commission. However, the two provisions only allowed for measures to be taken against entities or persons, who physically controlled part of the territory or effectively controlled the government apparatus.
By January 2002 the Taliban regime had fallen, which meant that the sanctions were levied on individuals who were not part of the ruling government and in direct control of the territory. The already very expansive reading of Articles 301 and 60 EC could not accommodate this crucial factor without becoming even more obscure and uncertain.
This is why the European Commission proposed to rely on Article 308 EC (now 352 TFEU). Article 308 EC offered valuable legislative power where the Union did not have express authority to create laws. This provision was an easy solution to complement the limited express provisions on external relations in the early stages of the European integration process. Weiler argues that only a radical and creative reading of the article could justify its usage and that its wide reading, in which all the institutions took part, meant that it was virtually impossible to find an activity that could not be brought within the objectives of the Treaty. Nonetheless, Article 308 EC was regularly used to significantly develop the power of the Union in fighting the war on terrorism by permitting the Council of Ministers to make sanctions decisions. Both the General Court and the CJEU in Kadi I agreed that EU had the competence to adopt ‘smart’ sanctions on the joint basis of Articles 60, 301 and 308 EC.
The regime for economic sanctions after the Lisbon Treaty
The legal basis disputes in the Kadi I litigation foreshadowed numerous reforms in the EU’s external action that were introduced by the Lisbon Treaty. Article 75 TFEU now explicitly allows the EU to freeze the funds of individuals in order to prevent and combat terrorism and attain the objectives of Article 67 TFEU, which states that, ‘The Union shall constitute an area of security, freedom and justice with respect for fundamental rights and the different legal systems and traditions of the Member State’. Such measures must be adopted under an ordinary legislative procedure, which includes the European Parliament – the only democratically-elected EU institution – and the Council of Ministers. Alternatively, under Article 215(2) TFEU, the Council can implement measures, ‘for the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries’. This power is exercised only in the context of the CFSP and the Council of Ministers can adopt a unanimous decision on a joint proposal from the High Representative and the Commission. Notably, the European Parliament is merely informed about a Regulation imposing ‘targeted’ sanctions under Article 215(2) TFEU.
What is evident from the wording of the provisions is that the legislator took pains to differentiate between two factual situations. On the one hand, Article 75 TFEU specifically relates to combating terrorism through the freezing of funds. It confers to the Parliament and the Council to take measures to protect the citizens of the EU and their fundamental freedoms. On the other hand, Article 215 TFEU is vague as to its objectives and relates primarily to the monetary relations between the Union and third countries. A year after the Lisbon Treaty came into force, the Parliament brought an action for the annulment of Regulation 881/2002, which was based on Article 215 TFEU.
In that case, Parliament v Council, the CJEU explicitly considered the level of institutional scrutiny and review that should be provided when implementing ‘smart’ sanctions on EU level. The Parliament argued that since the entry into force of the Treaty of Lisbon, the EU can adopt measures concerning fundamental rights only under the ordinary legislative procedure or with the consent of the Parliament, ‘The Treaty of Lisbon reflects the intention of the Member States to enhance the democratic nature of the European Union. It responds to an urgent need to provide for parliamentary scrutiny of listing practices’. The Council argued that the Parliament’s argument is contradicted by Article 215(3) TFEU, which provides that any acts under the provisions ‘shall’ include legal safeguards, which is a clear indication that such acts can also interfere with fundamental rights. Advocate General Bot held that the Parliament’s involvement in CFSP matters relating to imposing ‘smart’ sanctions is not critically obliterated if the Council decides to take the matters in the area of CFSP. In particular, she pointed to the obligations of the High Representative to, ‘regularly consult the (…) Parliament on the main aspects and the basic choices of the CFSP and inform it of how those policies evolve. He shall ensure that the views of the (…) Parliament are duly taken into consideration’. Ultimately, she argued that ‘the importance of combating terrorism is such that every legal instrument available to the European Union under the Treaties must be mobilized’. The Advocate General’s opinion was another manifestation of the continued spirit of extension on the powers of authorities to tackle terrorism, even at the cost of overlooking the democratic review of such sanctions.
In that same spirit, The CJEU said, ‘Given that terrorism constitutes a threat to peace and international security, the object of actions undertaken by the Union in the sphere of the CFSP (…) can be to combat terrorism’. Thus, it was held that terrorism is the exclusive domain of the CFSP and the regulation was rightly adopted on the basis of Article 215(2) TFEU. The CJEU admitted that participation by the Parliament in the legislative process is the reflection of the fundamental democratic principle that the people should participate in the exercise of power through the intermediary of a representative assembly. However, the differences in the Parliament’s involvement are the result of the express choice made by the framers of the Treaty of Lisbon to confer it a more limited role.
The judgment highlighted how eager the CJEU was to recognize the new expansions of authority that the Lisbon Treaty conferred to the EU’s external actions policy framework, at the same time disregarding the Parliament. One gets easily overwhelmed by the multiple cross-references and broad interpretations that the Court and Advocate General invoke to codify counter-terrorism measures as laying in the province of the Union’s CFSP, despite there being no mention of ‘terrorism’ in Article 215(2) TFEU. Other issues that were left unanswered are, for example, in what cases does terrorism fall outside the CFSP, and accordingly Article 215(2), and within the ambit of Article 75 TFEU. In other words, in what situations was Article 75 TFEU designed to kick in? Even more worryingly, it remained unclear what legal basis would purely EU-internal terrorist groups attract.
Advocate General Bot’s opinion in Kadi II
Advocate General Bot’s opinion in Kadi II demonstrated how the ‘war on terrorism’ agenda that the CJEU embraced in European Parliament v Council could be naturally taken one step further to limit further the level of review of ‘smart’ sanctions but this time targeting the judiciary instead. Advocate General Bot stated that the fight against terrorism cannot lead democracies to disregard the rule of law and yet, they should be able to make changes to such fundamental principles. She argued that there are exceptions to the doctrine of full judicial review in the EU and that measures taken to assist the fight against terrorism should be left outside the scope of the EU courts. Finally, she stated that the Union’s judiciary must not become a forum for appeals against decisions taken by the UN Sanctions Committee and that the most effective way to balance the objective of combating terrorism and optimal protection of the fundamental rights of listed person is to develop cooperation between the EU and the UN.
In the final chapter of the Kadi saga, the CJEU dismissed the appeals by the Commission and Council in Kadi II and declared that the EU courts have the power to conduct a full judicial review of SC sanctions. It thus dismissed Bot’s opinion that it should restrict its review in ‘smart’ sanctions cases or in fact any cases that deal with the Union’s CFSP policy and program on the war on terrorism. The court repeated to a great extent the mantra of its supremacy and the existence of the, ‘constitutional guarantee in a Union based on the rule of law [of] judicial review of the lawfulness of all European Union measures’. It can only observed at this point how little of the Court’s vigor to re-ascertain its own institutional powers was ever employed to protect the other values the Union is founded on like democratic decision-making for instance.
The list of countries, whose individuals’ assets have been frozen by the EU is currently 45. Only in Syria, there are 179 people and 54 companies under the ‘smart’ sanctions regime. Each person on these lists might potentially have suffered from the same breaches of human rights as Mr. Kadi – the rights to be heard, to effective judicial review, and the right to respect for property. Placing the enactment of such regulations within the ambit of the CFSP has circumvented the European Parliament in order to ensure a swift procedure to react to urgent developments. It has undoubtedly provided the EU with the tools to effectively penalize hostile regimes around the world. However, asset freezing is considered by many a ‘civil death penalty’, destroying the lives and reputation of individuals, turning them into outlaws with no rights and no means to defend themselves. In their efforts to tackle terrorism and ascertain the EU as a strong player on the international scene, the Commission and the Council of Ministers have been ready to found such destructive powers on ambiguous provisions, acting against the rule of law and democracy pillars these same institutions were created to protect and enforce.
 P Koutrakos, Trade, Foreign Policy & Defence in EU Constitutional Law (Oxford, 2011) 50.
 See most recently Council Decision 2013/395 of 25 July 2013, which added the military wing of Hezbollah to the list of designated terrorist organizations and asset freezing list.
 Case C-584/10 Commission v Kadi (General Court, 30 September 2010)
 Consolidated Version of the Treaty on European Union  OJ C115/13, Article 2.
 United Nations Sanctions 1267 (Security Council), S/RES/1267 (1999), <http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/1267(1999)> (accessed May 25, 2013).
 Council Regulation (EC) 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban  OJ L139/9. For a history of all the cases see Joris Larik, ‘Two Ships in the Night or in the Same Boat Together: How the ECJ Squared the Circle and Foreshadowed Lisbon in its Kadi Judgment’ (2010) 13 Yearbook of Polish European Studies 149.
 Joint Cases C-402/05 and C-415/05 Kadi and Al Barakaat v Council and Commission  ECR I-06351.
 Case 242/87, Commission v. Council (ERASMUS)  ECR 1425, 1452.
 C-415/05 Kadi and Al Barakaat v Council and Commission  ECR I-06351, Opinion of AG Maduro.
 Case T-315/01 Kadi v Council and Commission  ECR II-03649, para 6.
 Peter Van Elsuwege, ‘The Adoption of “Targeted Sanctions” and the Potential for Inter-institutional Litigation after Lisbon’ (2011) 7(4) Journal of Contemporary European Research 488, at p.491.
 J. H. H. Weiler, ‘The transformation of Europe’ (1991) 100(8) The Yale Law Journal 2403, at p.2445.
 See above (note vi), paras 123-133 in the General court; para 212 in the CJEU.
 Case C-130/10 European Parliament v Council of the European Union (CJEU, 19 July 2012), Opinion of AG Bot, para 44.
 Case C-584/10 Commission v Kadi (General Court, 30 September 2010), Opinion of AG Bot, para 6.
 Case C-584/10 Commission v Kadi (Court of Justice of the EU, 18 July 2013), not yet published.
 <http://www.hm-treasury.gov.uk/d/syria.htm> accessed 21 May 2013.