The Grand Chamber of the Court of Justice of the European Union (CJEU) has issued judgments in two appeals concerning EU counterterrorism sanctions against Hamas and the LTTE (Tamil Tigers). Siding with the EU Council on key issues, the judgments offer a relatively permissive interpretation of the Council’s procedural obligations in extending existing counterterrorism designations compared to that of the EU General Court (GC).
In a previous post, I analyzed the GC judgments under appeal and Advocate General Eleanor Sharpston’s opinions in the framework of the proceedings in the CJEU. Although A.G. Sharpston took issue with parts of the GC’s reasoning, she agreed with the Court’s conclusion that sanctions measures that have kept Hamas and the LTTE on the EU counterterrorism sanctions list should be annulled on due process grounds. In contrast to A.G. Sharpson’s position, the CJEU last week set aside the GC’s order to annul sanctions against Hamas. Hamas remains designated, but the case is not closed. The CJEU referred it back to the GC for reconsideration in light of the judgment on appeal. At the same time, the Court upheld the annulment of the sanctions measures concerning the LTTE.
The judgments clarify the procedural requirement to which the EU Council must adhere when it extends a designation under the EU counterterrorism sanctions regime, as it did in the cases of Hamas and the LTTE. (That sanctions regime is governed by Council Common Position 2001/931/CFSP, adopted in 2001). The CJEU reiterated that the extension of an existing designation would be warranted if the Council considers that there is “an ongoing risk of [the designated] person or entity being involved in the terrorist activities which justified their initial listing” (CJEU Hamas judgment, para. 29). To demonstrate that such a risk exists, the Council may be required to rely on up-to-date information—which naturally was not available at the time of the original designation. The main question the judgments address is what kind of information the Council may use.
The GC held that any new information the Council relies on in extending a designation must first be vetted by a national “competent authority.” (Article 1 of Common Position 2001/931/CFSP requires designation by a national authority as a prerequisite for designation at the EU level). This, the GC reasoned, is mandated by the two-tiered designation system Common Position 2001/931/CFSP has put in place. The purpose of that system, it recalled, is to compensate for the lack of EU investigation and information-vetting capabilities and thus protect the rights of the persons concerned.
By contrast, the CJEU held that when the Council extends a counterterrorism designation it may rely on new material that has not been considered by a national authority first. The correct interpretation of Article 1 of Common Position 2001/931/CFSP, the Court concluded, is that a prior national decision is only required for new designations. The CJEU noted that the GC was wrong to assume that the Council would be able to require national authorities to constantly renew national designations to support extensions at the EU level, as this has no basis in EU Law. The CJEU also rejected the claim that Council reliance on independently collected, poorly vetted information undermines the rationale of the two-tiered counterterrorism designation system. It maintained that the right to challenge designations before the EU Courts sufficiently protects the rights of those designated under the EU counterterrorism sanctions regime.
Another issue that only the LTTE judgment addresses is the Council’s obligations when it relies on decisions of the “competent authorities” of non-EU member states (among other things, the Council pointed to an Indian decision to support the designation of the LTTE). Here the CJEU agreed with the GC. Like the GC, it held that the Council is required to certify, in its statement of reasons for a designation based on a decision of a third state’s authority, that that decision was adopted in accordance with fundamental rights standards equivalent to those that apply in the EU. The Council failed to convince the CJEU that such certification might be perceived by the third state as interference in its internal affairs, and therefore limit the Council’s ability to rely on third state decisions.
A few elements of the judgments are worth highlighting. First, the CJEU opted for an approach that allows the EU Council greater autonomy in administering counterterrorism designations. The Court significantly relaxed the stringent procedural requirements the GC has set forth regarding extensions of such designations. It freed the EU Council of the need to turn to national authorities to support every single extension of a designation, and enabled the Council (in principle) to use information it has collected independently. This broad interpretation of the Council’s independent sanctioning powers is in line with the newer counterterrorism measures the EU Council has adopted in late 2016 concerning ISIL and Al-Qaida, which do not require the Council to rely on national decisions as a precondition for designating persons and entities affiliated with those groups.
Second, the CJEU’s application of its interpretation of the law in the cases of Hamas and the LTTE produced very different operative outcomes. The Court found that the GC’s order to annul Hamas’ designation could not stand because it was based only on the Council’s failure to indicate that it had relied on national decisions in extending that designation. The Court did not say anything as to whether the evidence the Council provided to support Hamas’ continued designation passed muster, leaving this task to the GC. By contrast, the CJEU did engage with the evidence in the LTTE case, agreeing with the GC that the extending measures concerning the group should be annulled. The CJEU concluded that the Council had failed to establish before the GC that there is ongoing risk of LTTE involvement in terrorism, because it did not provide any evidence to suggest that the group remained active after the Sri Lankan Government announced its military defeat in May 2009.
Although the Court’s analysis in both cases was strictly limited to procedure, one cannot help but wonder to what extent the Court’s “threat perception“ played a role in its decision-making. While the CJEU strongly implied that sanctions against the LTTE are no longer warranted because the group no longer poses a serious threat, the security and political stakes where it comes to Hamas are significantly higher. Perhaps that is one of the reasons the Court refrained from striking down the measures concerning Hamas.
Finally, from a broader perspective, these latest judgments are yet another example of how the EU courts deploy procedure to nudge EU policymakers into improving their policy decisions regarding individual sanctions, while avoiding overt interference with substantive policy. The striking down of the LTTE designation is not the final word on the issue. It is merely an invitation for the EU Council to reconsider whether designating the LTTE is truly necessary in light of the facts about the present nature of its activities.