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The EU Anti-Terror Lists LLM EU Integration Notes
Table of Contents
LLM EU Integration Notes
Introduction This is all about fundamental rights and judicial protection, and their application in practice. The context of the discussion is the terrorist list - a practice whereby executive bodies identify people suspected of being a terrorist and a range of restrictive measures are imposed upon them. These are preventative measures designed to prevent terrorism offences. In the EU, there are two lists. Firstly, the UN list - the EU acts as an agent giving effect to what has happened at an international level. Secondly, the EU list - drawn up by the EU institutions themselves, based on the decision of a competent authority. For example, if a UK prosecutor has evidence, they will forward it to an EU body, and a decision will be taken on the basis of that evidence.
UN Security Council This body has primary responsibility to uphold peace and security. To do this, it has broad discretion when to act - it can act whenever it deems there to be a threat to peace. It acts in all sorts of conflicts - not only inter-state but also purely internal. It also has broad discretion about how to act. It can use targeted economic sanctions (such as embargos) as well as force. Economic sanctions are very harmful to the civilian population, and so specific individual targeting is now much more likely to be used.
UN Al-Qaida Regime Started with sanctions on the Taliban in Afghanistan in order to pressure them into handing over Bin Laden, and when they failed to do this, the sanctions were extended to Al-Qaida. After 9/11, and the defeat of the Taliban, these sanctions were no longer applicable to a state actor, so something had to change. Neither the listing procedure, nor to procedure to instigate removal from the list comply with rights of due process, so a number of resolutions have tried to reconcile the fight against terrorism with these human rights concerns. SC Resolution 1373 - imposed a duty on all states to impose sanctions on suspected terrorists, and to criminalise terrorism (specific definition). No specific list of terrorists established.
EU Implementation Introduced in 2002 - CFSP common position, sanctions under SCR 1373 implemented by means of EU Regulations. Common position established two distinct regimes. EU list of terrorists - internal and external, based on whether they were based within the EU (e.g. ETA, the Basque separatist group, 17 November, Baader-Meinhoff). For internal terrorists, there was an enhanced obligation on Member States to track down terrorists and contribute to their prosecution. For external terrorists, like the UN list, there were sanctions by means of EU regulations. Some people removed from the list, under Lisbon. Terrorist lists directly engage a number of rights. Can we really say that these sanctions are merely administrative? They are basically criminal sanctions, now, and with that comes some extra considerations. There are two contexts that we need to examine:
1. Multi-layered (UN/EU, mixed proceedings) context - scope of human rights, responsibility
2. Security context
Competence and Jurisdiction Competence Pre-Lisbon Pre-Lisbon, this was very controversial - see 100 paragraph discussion in Kadi. Only foreign terrorists were sanctioned, under Articles 60, 301, and 308. Article 301 EC - Inter-pillar mechanism - economic sanctions. Article 60 EC - third countries measures. Crucially, neither of these mention individuals, but AG Maduro said that these were sufficient to affect individuals, because targeting individuals would lead to reducing economic relations with third countries, but this was rejected. The aim of these measures was counterterrorism, and not affecting third countries. Article 308 EC - allows for the extension of the ambit of the powers in Article 301 and Article 60 as long as there are some conditions fulfilled. Firstly, there must be an EC objective (not a CFSP objective), but the court gets around this - Art 301 and 60 express an underlying community objective to adopt measures for the effective pursuance of the CFSP, so this is justified. Secondly, there must be a link to the Common Market. This is tricky, but we can show a link - that freezing assets will affect the common market. Competence was the first major hurdle.
Post-Lisbon Now we have two legal bases for the power to sanction individuals.
Article 215 TFEU This is essentially an expansion of the inter-pillar mechanism. Now there is a second paragraph, which allows the EU to take restrictive measures (not just economic and financial) against natural or legal persons, and non-state entities after a decision has been adopted under the CFSP, as well as against states. This was used for the implementation of the UN list.
Article 75 TFEU Now there is the ability for the parliament (using the ordinary legislative procedure) to adopt measures against persons if necessary to prevent and combat terrorism. This has not been used, but we can assume that it is probably likely to be used for internal terrorists.
Choosing Between the Legal Bases Do we use Art 75 or Art 215? Art 75 requires OLP, but Art 215 requires unanimity under the CFSP. The relationship between the two legal bases is unclear - the scope of Art 75 TFEU is more defined, relating to capital movements and payments, and is restricted to individuals, whereas Art 215 TFEU provides for all types of restrictive measure and also measures against third countries. It could therefore be argued that Art 75 is Lex Specialis as far as financial sanctions are concerned with other individualized sanctions falling within Art 215. On the other hand, Article 215 is found within the measures relating to external relations provisions of the TFEU, whereas Art 75 is placed within the AFSJ; so although neither provision is expressly limited in this way, it could be argued that Art 215 is intended to be used against persons engaged in activities outside the EU, whereas measures against those active only in the EU should be based on Art 75. The choice of legal basis must be based on objective criteria amenable to judicial review. No longer any preference given to a TFEU basis as opposed to a CFSP basis. Instead, we need to look at the traditional case law - Titanium Dioxide:
LLM EU Integration Notes
If we take the Titanium Dioxide approach, we have a number of criteria we might want to look at.
1. Nationality of the person - internal vs external - OLP vs CFSP. The problem with this is that it doesn't concord with past practice - Yusuf (Swedish). This means that some organisations will be targeted under a split of basis, so this seems silly.
2. Subject-Matter - Art 75 is about terrorism, 215 is not so specific, more for use for more traditional conflicts. However, this doesn't follow from the treaty - can argue that you can interpret the treaty articles against this.
3. Type of Measure - Art 75 is only for administrative measures relating to capital. For travel bans, need to use Art 215 anyway. As a result, Article 75 has become Lex Specialis for asset freezing.
4. Origin of the list - this would mean that if the list emanates from the UNSC, need to use 215. If the EU under its own autonomous powers draws it up, then you need to use Art 75, but this is wrong, and open to challenge.
5. Territorial base of the organisation - distinction between external and internal terrorists. All those organisations that are focussed outside the EU will be targeted under Article 215. Inside will be targeted under Art 75. CJEU in C-130/10 European Parliament v Council says that Article 215 is a proper legal basis. The starting point is the aim and content test. There is no mention of Article 40 at all. Titanium Dioxide - when a measure pursues two contexts, you look for the more important one. Cannot use two legal bases together. These two provisions are complementary, and are meant to fulfil different objectives. It is the content that determines the legal basis, not the procedure that determines the substance. There is a distinction in the judgment between terrorism and international terrorism (there is a question as to whether this the distinction between internal and external?). Maybe Art 75 is about internal security, and Art 215 is about external security. AG says that this distinction is wrong - terrorism inherently knows no boundaries. He argues that if we continue this distinction, we will have all sorts of problems. What if a group starts in the EU and then discusses, plans and commits atrocities abroad? AG Bot lists in his opinion a clear distinction between the provisions:
* Article 75 - Sphere outside CFSP in which EU enjoys complete freedom. But Article 75 is lex specialis, and can only be used for economic sanctions.
* Article 215 - used to target people listed by the UN, more about the implementation of the measures decided by the UNSC, even if there is discretion. Requirement of a UN mandate. No analysis as to why you can't complement sanctions against people on the Art 75 list with sanctions under Art 215. Arguably, there is a distinction between the use of sanctions in order to prevent terrorism situations in countries such as Somalia or in Waziristan, and the use of sanctions in order to prevent terrorism that will undermine the Area of Freedom Security and Justice.
Jurisdiction Pre-Lisbon First Pillar: Full jurisdiction Second Pillar: Almost no jurisdiction, only thing that the court could do is monitor adherence with Art 47 Third Pillar: Truncated regime - common positions are excluded, a la carte regime for preliminary references - states were free to determine which courts would make a reference. Action for annulment not available for individuals, and no damages. Lists were immune to judicial review - OMPI. However, there is no breach of the right to effective judicial protection, because there is a possibility to review the implementing measures. This doesn't help with things like the right to reputation.
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