Impediments Under European Law To The Prevention And Prosecution Of Foreign Fighter Crimes

Fahrid Chishty
Second year undergraduate student and Dickson Poon Scholar of the LLB in Politics, Philosophy & Law (PPL) at King’s College, London

The European legal order is beset by an unprecedented challenge today. Domestic nationals, prevailingly of Western European origin, are engaged at the centre of ideological conflicts in Iraq and Syria in increasing numbers. Against the backdrop of sectarian conflict and the proliferation of terrorist networks, European ‘foreign fighters’ pose a significant threat, upon return, to the security and prosperity of their Member States (MS) of origin. National governments have enacted legislation in recent months in order to stem the tide of European fighters leaving and re-entering Union or State territory, accentuating the need for a collaborative and synergetic regional strategy. This article assesses the impediments, actual and potential, to the prevention and prosecution of foreign fighter criminality in the Middle East region (ME) under European Union law. It identifies potential lacunae in the law, concluding with the case for EU-wide legislation facilitating the arraignment of foreign fighters consistently across MS, as proposed by Gilles De Kerchove, Brussels’ Counter-Terrorism Coordinator (CTC), at the Commission in December 2014.[1]

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Democratic Oversight for Counter-terrorism Sanctions in the EU

Alexander Kolev

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.[1] ‘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.[2]


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.[3] 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?[4]



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.[5] 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).[6]


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.[7] 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.[8] 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.[9]


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.[10] 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.[11] 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.[12] 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.[13]


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’.[14] 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.[15] 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.[16] 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.[17] Only in Syria, there are 179 people and 54 companies under the ‘smart’ sanctions regime.[18] 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.


[1] P Koutrakos, Trade, Foreign Policy & Defence in EU Constitutional Law (Oxford, 2011) 50.

[2] 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.

[3] Case C-584/10 Commission v Kadi (General Court, 30 September 2010)

[4] Consolidated Version of the Treaty on European Union [2008] OJ C115/13, Article 2.

[5] United Nations Sanctions 1267 (Security Council), S/RES/1267 (1999), <> (accessed May 25, 2013).

[6] 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 [2002] 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.

[7] Joint Cases C-402/05 and C-415/05 Kadi and Al Barakaat v Council and Commission [2008] ECR I-06351.

[8] Case 242/87, Commission v. Council (ERASMUS) [1989] ECR 1425, 1452.

[9] C-415/05 Kadi and Al Barakaat v Council and Commission [2008] ECR I-06351, Opinion of AG Maduro.

[10] Case T-315/01 Kadi v Council and Commission [2005] ECR II-03649, para 6.

[11] 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.

[12] J. H. H. Weiler, ‘The transformation of Europe’ (1991) 100(8) The Yale Law Journal 2403, at p.2445.

[13] See above (note vi), paras 123-133 in the General court; para 212 in the CJEU.

[14] Case C-130/10 European Parliament v Council of the European Union (CJEU, 19 July 2012), Opinion of AG Bot, para 44.

[15] Case C-584/10 Commission v Kadi (General Court, 30 September 2010), Opinion of AG Bot, para 6.

[16] Case C-584/10 Commission v Kadi (Court of Justice of the EU, 18 July 2013), not yet published.

[18] <> accessed 21 May 2013.


The Kadi Saga: UN targeted asset-freezing sanctions under scrutiny

Georgina Morgan

LLM Student at King’s College London


The (previous named) ECJ’s decision in September 2008 in Kadi I has been called “one of the most discussed judgments in ECJ history.”[1] Following the recent release of the Attorney General’s Opinion in Kadi II, and in anticipation of the CJEU’s decision, this controversial litigation appears an apt topic for ‘The Year of the Citizen’. Bearing in mind the original conception of the European Union as a trade union, the fact that one of the Court’s most discussed judgments concerns anti-terrorism measures against individuals demonstrates just how much the sphere of the Union has grown to encompass. This article will explore but a few of the vast range of legal issues raised by the “saga” of the Kadi cases.[2]


The background

The Kadi cases are the most notable in a series of challenges against the targeted asset-freezing sanctions stemming from the United Nations Security Council (UNSC). The EU Regulation that Mr. Kadi challenged (in so far as it applied to him) implemented Resolution 1267 (1999) of the UNSC, which set up the sanctions regime targeted at Al-Qaeda and associated individuals. Unlike other lines of sanctions,[3] the 1267 sanctions list is controlled by a subsidiary body of the UNSC, known as the Sanctions Committee.


Mr Kadi was first included on the sanctions list in 1999. Once listed, Mr Kadi was subject to a worldwide asset-freeze and travel ban – all without being informed of the reasons for his listing or being given any meaningful opportunity to challenge the measures. Targeted asset-freezing sanctions are the most severe illustration of the move in counter-terrorist action in the ‘war on terror’ towards pre-emptive action, in clear violation of the principles of the rule of law.


Kadi I

In Kadi I, the (then) ECJ in 2008 reversed the decision of the (then) CFI with regards to its ability to review the legislation in light of certain fundamental rights. The CFI had held that such a review of the EU Regulation was precluded by virtue of the source of the measure being implemented: the source being the UNSC. The crucial difference that so changed the outcome of the ECJ’s decision was the finding, in accordance with the principles from Les Verts,[4] that all EU measures are subject to review against established legal standards regardless of the source of the measure.[5] After having crossed this hurdle, the ECJ then conducted a marginal review of the Regulation, which was all that was required to establish a breach of due process rights.[6] This led the Court to annul the measure in so far as it applied to Mr. Kadi, but not without the delay of three months being given to the Commission to allow them to review their procedure in light of the judgment.


This decision provoked strong reactions from both ends of the spectrum. Outrage revolved around the ECJ’s audacity in interfering with matters as paradigmatically political as counter-terrorism action, and for disregarding the EU’s obligations towards international law through conducting (what effectively amounted to) an indirect review of the UNSC.[7] Praise, on the other hand, focused on the ECJ’s strong stance in relation to its protection of fundamental rights.[8]


While space does not permit a detailed examination of these arguments, it is suggested here (in agreement with Maya Lester, counsel for Mr. Kadi, and Piet Eeckhout) that the decision was far from revolutionary and was in fact appropriate in context.[9] The case confronted the issue of which of the EU’s fundamental Treaty principles to prioritise legally when they came into conflict: the EU’s international obligations under Article 3(5) TEU (chosen by the CFI), or fundamental rights and principles of law under Article 2 TEU (prioritised by the ECJ). The ECJ’s active role in promoting the EU as an institution that guarantees the protection of human rights is widely documented,[10] and such rights protection is “foundational for the EU’s democratic legitimacy.”[11] Had the ECJ followed the reasoning of the CFI and declined jurisdiction to review the Regulations by virtue of their origin, it would have left a gaping legal vacuum and the clear message for Member States that the guarantees of rights protection by the EU were empty rhetoric.[12]


The corrections made by the ECJ to the CFI’s legally flawed decision – which risked turning the UNSC into a “supreme, unfettered legislature”[13]– are therefore strongly supported by the wider considerations of the constitutional principles at stake. The ECJ made a decision to uphold human rights in the face of political pressure the contrary, demonstrating the substance behind the EU’s rights discourse. Furthermore, the frustration with the UNSC sanctions regime evident in the rising number of domestic challenges illustrates that the ECJ’s decision was necessary and timely.

The practical ramifications

Since the judgment in 2008, the UNSC has made a variety of modifications to the operation of the Sanctions Committee. ‘Narrative summaries’ of reasons for individual listings began to be issued in the aftermath of the judgment, and Resolution 1904 (2009) set up the Office of the Ombudsperson to review delisting applications – a direct consequence of the ECJ’s decision in Kadi I.[14] That the UNSC has not fought the challenges but rather  implemented changes to the regime is perhaps the most convincing evidence in favour of the ECJ’s decision in Kadi I. Furthermore, a statement from the UN General Assembly issued in 2009 urged states to include “adequate human rights guarantees” in their national sanctions measures, which effectively endorses the ECJ’s position.[15]

Although these are moves in the right direction, the basic inadequacies in the regime still persist. The system still provides no procedure for impartial review nor guarantees concerning the adequate provision of evidence to those listed.[16] However, a distinct increase in the individuals being delisted can be seen on the Sanctions Committee website. Along with a number of other individuals, Mr Kadi himself was finally delisted at the level of the UN Sanctions Committee on the 5th October 2012. While the need for further change is still pressing, the international pressure on the Sanctions Committee to reform has shown that the Kadi I decision was a far cry from the “pyrrhic victory” prophesied by de Burca.[17]

Kadi II

March saw the release of Attorney General Bot’s Opinion in Kadi II. If the CJEU follows the Opinion, both decisions of the lower court in the Kadi “saga” will have been overturned on appeal.


The Kadi II litigation was launched to challenge Mr Kadi’s relisting following the ECJ’s decision in Kadi I. As the ECJ in Kadi I insufficiently addressed the implications of indirectly reviewing the operation of the Sanctions Committee or the appropriate level of review, the European General Court (EGC) had little guidance upon which to rely in Kadi II other than the phrase “in principle, full review”.[18] In line with the OMPI judgment, the EGC’s interpretation was that the ECJ intended review to extend beyond due process to a substantive review of the evidence on which the listing decision is based, all of which should be disclosed to the listed individual.[19] Not only does this raise issues regarding the ability of the European courts to conduct such review, it also dangerously fails to strike a reasonable balance between the interests at stake, and risks opening the doors for substantial judicial interference with the political prerogative of security management.


As such, it was advocated that the CJEU’s decision in Kadi II ought to take a more narrow interpretation of its Kadi I decision.[20] AG Bot has given the first indication of the line the Court will take, and, as anticipated, it has been narrowed: he recommends that the judgment of the EGC be set aside and the action brought by Mr. Kadi against his re-listing be dismissed. The Opinion clearly takes a more deferential stance towards the political nature of the counter-terrorist measures, and towards the UNSC’s designated role in identifying and tackling threats to international peace.[21] His suggested approach is that:


“The respect which the European Union must pay to…international law does not…have to be reflected in immunity from jurisdiction…but in an adaptation of the judicial review conducted.”[22]


A number of reasons are then given for conducting a low procedural review of the implementation by the Commission. As well as addressing the political nature of counter-terrorist action, notable amongst these is the reliance on the improvements in the procedure for review before the Sanctions Committee post-Kadi. As highlighted above, it is certainly debatable whether the Office of the Ombudsperson is in fact quite as effective in the listing and delisting process as the Attorney General maintains.[23] However, whilst the challenge in Kadi I was relatively straightforward once the ECJ established jurisdiction, the modifications since made to the regime do make a challenge at judicial level increasingly complicated. As Ginsborg and Scheinin advocate (also implicit in the Opinion), it is possible that the judiciary have gone as far as they can in pushing for reform of the sanctions regime and it has to be a political solution that confronts the remaining inadequacies.[24]


Interim conclusion

While the ECJ made an appropriate decision in Kadi I, especially in light of the flawed CFI judgment, it nonetheless opened a Pandora’s box – partly through the nature of the issues in the case, and partly due to repercussions from its own reticence. In addition to navigating the network of international organisations, the European courts are having to grapple with relatively novel issues concerning the role of the judiciary in reviewing counter-terrorism action, where on both sides there is much at stake: interference with individual liberty and the rule of law on the one hand, and the protection of civilians from heinous terrorist attacks on the other. After the overtly political decision of the EGC in Kadi II, it is highly likely in the light of the AG’s Opinion that the broad interpretation given to the ECJ’s judgment in Kadi I will be narrowed by the CJEU in their forthcoming decision.[25] It will be of significance for all cases concerning counter-terrorism measures exactly how the ECJ reconciles the conflicting interests of the individual, the state and the international order.


Although the judicial challenges to the UNSC sanctions regime have stimulated reforms at the UN level, the changes implemented thus far do not go deep enough. AG Bot’s Opinion reflects the current feeling that further improvement of the regime demands a political solution, namely developing cooperation between the EU and the UN in this area. However, considering that the deep structural deficiencies of the sanctions regime are reflective of a general trend in counter-terrorism towards pre-emptive action, it is perhaps wishful thinking to anticipate such fundamental change stemming from the originators and greatest advocates of such action. Nonetheless, despite targeted sanctions being the West’s strongest pre-action measure in the ‘war on terror’, their suitability for and efficacy in combatting terrorism is being increasingly doubted.[26] As Eckes says, “the end of fighting terrorism no longer justifies all means.”[27] It remains to be seen what means the end does justify.



[1] Murphy (2012: p.115).

[2] Kadi I, C-402/05 and C-415/05. Kadi II, joined cases C‑584/10, C‑593/10 and C‑595/10. AG Bot’s Opinion [123].

[3] Such as the sanctions stemming from Resolution 1373 (2001).

[4] C-294/83 Les Verts [23], cited by the ECJ in Kadi I at [281].

[5] Kadi I [281-327].

[6] Kadi I [331-372].

[7] See, for instance, Grainne de Burca, Jean Monnet Working Paper 01/2009.

[8] See, for instance, Türküler Isiksel (2010) European Law Journal 16(5).

[9] Maya Lester, counsel for Mr Kadi, at King’s College, 05/11/12. Eeckhout, EJIL:Talk! (Blog) (25 February 2009).

[10] Türküler Isiksel at no.8, p.553.

[11] Von Bogdandy, (2012) Common Market Law Review 49:489. Note how important this is in the context of the EU’s current legitimacy crisis and democratic deficit at the institutional level.

[12] Note context of the recent wave of EU rights discourse, including the incorporation of the EU Charter of Fundamental Rights into the Lisbon Treaty and the proposed accession to the ECHR.

[13] Eeckhout, (2007) European Constitutional Law Review 181.

[14] As pointed out in AG Bot’s Opinion in Kadi II [83].

[15] G.A. Resolution 63/185 (2009), UN Doc. A/RES/63/185, para.20, cited in Ginsborg (2011: p.5).

[16] Ginsborg & Scheinen, EUI Working Paper, RSCAS 2011/44 (May 2011).

[17] De Burca, above no. 7 (p.46).

[18] Kadi I [326], Kadi II at [132].

[19] Kadi II [135].

[20] Ginsborg, no.16 (p.10).

[21] Opinion of AG Bot, especially [71], [80].

[22] Ibid, [52] (italics my own).

[23] Ibid [86].

[24] Opinion of AG Bot at [76]. Ginsborg, no.16 (p.10).

[25] Ibid.

[26] Murphy (2012: p.146). This is particularly in light of the low costs of funding terrorism – the cost of the London 7/7 bombings is estimated at less than £8000. Danziger, Journal of Money Laundering Control (2012) 15(2), 210-236.

[27] Eckes, “EU Counter-Terrorist Policies and Fundamental Rights: The Case of Individual Sanctions” (2010: p.12).