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EU court further limits blacklisting authority

September 23, 2013

The European Court of Justice (ECJ) set a high bar this summer for justifying individual sanctions against terrorist financiers by tossing an appeal of the court’s earlier decision on sanctions against Yasin al-Qadi, the Saudi multimillionaire creator of the Muwafaq Foundation.

In 2008, the ECJ ruled that the authorities levying such sanctions had to provide a summary to the sanctioned individual of the information that led to the sanctions.  The European Commission complied by providing a summary to al-Qadi and his lawyers.

But ECJ and al-Qadi still weren’t satisfied.  An even higher standard has been promulgated:  the allegations in the summary must be “well founded.”  Surely, the litigants in the case which included the U.K., the European Commission, and the EU’s Council of Ministers, believed the evidence was well-founded enough to impose the sanctions, but not well-founded enough to meet the ever shifting standards of the ECJ.

The law firm of Brick Court Chambers notes that the judgment “is of considerable general significance in relation to the standard of review to be applied in sanctions cases, and the treatment of national security-sensitive material, in the European courts.”

Indeed.  The judgment essentially forces European governments to divulge sensitive intelligence to terrorists to explain why the terrorists are being sanctioned by those governments.

European Voice has a good article explaining the background and the ruling:

Top EU court clears Saudi terror suspect

By Toby Vogel  –  18.07.2013

European Court of Justice rules that the UK and the European Commission failed to provide evidence of Al-Qaeda links.

In a final judgment delivered today, the European Court of Justice in Luxembourg has sided with Yassin Abdullah Kadi, a Saudi national who had fought his blacklisting by the United Nations and the European Union for over a decade.

Kadi was blacklisted by the United Nations Security Council in October 2001, in the wake of the 9/11 attacks, over alleged links to al-Qaeda, with the European Union following suit days later. He launched a legal challenge against the freeze of his considerable assets in the EU. In 2008, the ECJ ruled that his rights had been violated because he had not been given the reasons for his blacklisting. The United Kingdom, the European Commission and the EU’s Council of Ministers appealed against that ruling.

Following the 2008 ruling, the Commission provided Kadi with a summary of the reasons for his blacklisting and re-imposed sanctions against him.

The ECJ has now dismissed the appeal by the UK, the Council and the Commission, ruling that “no information or evidence has been produced to substantiate the allegations, roundly refuted by Mr Kadi, of his being involved in activities linked to international terrorism”, according to a summary of the judgment.

The Court also found while the summary the Commission gave to Kadi of the reasons for the sanctions was sufficiently detailed and specific, there was insufficient evidence for his alleged terrorist links.

While the court procedure was underway, and following a decade of litigation in the EU, the US and Switzerland, the UN last year removed Kadi’s name from its sanctions list, following a recommendation from the UN’s ombudsman. Once again, the EU simply implemented the UN’s decision and removed Kadi from its own list as well.

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