Hamas and the Tamil Tigers v. EU—Round 1.5

In late 2014, the General Court of the European Union (GC) annulled, on due process grounds, several measures that kept Hamas and the LTTE (Tamil Tigers) on the EU terrorism sanctions list. The EU Council appealed those decisions to the Court of Justice of the European Union (CJEU). In two opinions delivered last Thursday in the framework of the appeals, CJEU Advocate General Sharpston has concluded that the GC was correct in annulling the measures, although she took issue with parts of its reasoning (Hamas, LTTE). The advocate general opinions, while significant, do not bind the CJEU, which might still reverse the GC orders of annulment in its final judgments. Even if it does not, however, the Council will not be precluded from keeping both organizations on the sanctions list.

Both Hamas and the LTTE were included in the EU terrorism sanctions list under the 2001 Council Common Position on the application of specific measures to combat terrorism (2001/931/CFSP) and accompanying regulations. Those measures impose an asset freeze on a list of persons and groups involved in terrorism, which is periodically reviewed and updated. To be included in the EU terrorism list, a person or group must first be designated by a “competent authority.” According to article 1(4) of the 2001 Common Position,

The list [of persons and groups] shall be drawn up on the basis of precise information or material in the relevant file which indicates that a decision has been taken by a competent authority in respect of the persons, groups and entities concerned…

For the purposes of this paragraph “competent authority” shall mean a judicial authority, or, where judicial authorities have no competence in the area covered by this paragraph, an equivalent competent authority in that area.

Hamas was first listed in 2001. In listing and maintaining the listing of Hamas ever since, the Council principally relied on 2001 decisions by U.K. and U.S. authorities. In 2003, the Council expanded the scope of the designation from the military wing of Hamas (“Hamas-Izz al-Din al-Qassem”) to Hamas in its entirety. The LTTE was first listed in 2006. Here, the Council principally relied on decisions adopted by U.K. and Indian authorities in 1992, 2001 and 2004.

In the first round of litigation in the GC, Hamas and the LTTE, in separate cases, successfully challenged a series of Council measures that have kept them on the EU terrorism sanctions list. (They never challenged their initial listings.) The GC’s analysis focused on the facts that substantiated the Council’s decision to extend the listings of Hamas and the LTTE, according to the statements of reasons for the measures that the Council had provided. The Council referred in those statements to terrorist acts that took place after the national decisions that it had principally relied on. The Court found that contrary to the requirements of article 1(4) of the 2001 Common Position, the Council did not base its decisions to extend the listings of Hamas and LTTE on facts that were actually vetted by the relevant national competent authorities in the first instance, but rather on information that it had gathered independently from the press. The GC held that the Council may not base its listing decisions on its own assessment of press reports or information available on the internet, reasoning that doing so would undermine the two-tiered terrorism sanctions listing system, in which a decision by a national competent authority is a precondition for listing at the EU level. The purpose of this system, the Court recalled, is to protect the persons concerned and to compensate for the absence of independent EU means of investigation.

In both cases, the GC concluded that the Council had infringed article 1 of the 2001 Common Position and breached its obligation to state reasons under EU law. It thus ordered that the contested measures be annulled. To avoid irreversible damage to the effectiveness of sanctions against Hamas and LTTE, the Court suspended the orders of annulments pending CJEU decisions in the appeals (cases C-599/14 (LTTE) and C-79/15 (Hamas)).

Advocate General Sharpston’s opinions in the framework of the appeals, delivered on September 22, upheld the GC’s final conclusion that the challenged measures in both cases should be annulled, while taking issue with parts of the GC’s reasoning. AG Sharpston agreed with the GC that the Council cannot rely on new information that has not been vetted by a competent national authority, including information that can be found in the press or on the internet. She clarified, however, that the Council is not always required to present new decisions by competent authorities when it wishes to maintain an existing listing upon review, and that it may continue to rely on earlier decisions. But the AG emphasized that the Council must make sure that the facts and the evidence underlying the “old” decisions still provide a sufficient basis for a finding that the listed entity poses a terrorism risk and qualifies for sanctions, and found that the Council had failed to do so in the Hamas and LTTE cases. The AG further reiterated the rationale of the two-tiered listing system. In essence, then, the AG agreed with the GC’s reasoning with regard to all the key legal issues. Still, she recommended that the Council’s appeal be upheld, because in both the Hamas and the LTTE cases, the GC failed to explicitly examine all of the reasons that the Council had provided for maintaining their listings. That did not affect the final outcome in the AG’s view, though, because she considered the remaining reasons and found that they, too, were inadequate.

Another issue AG Sharpston addressed in the LTTE opinion was the duties of the Council when it relies on decisions of competent authorities in non-EU States (in that case, India). According to the AG, the Council is under an obligation to verify that third-State designation decisions are subject to fundamental rights standards equivalent to those that apply in the EU, in particular with regard to the right of defense and effective judicial protection. While decisions of EU member states generally enjoy a presumption of compliance with fundamental rights under EU, she observed, that is not the case with regard to third States. The AG concluded that the Council cannot merely mention that a third State decision exists in its statement of reasons for a particular listing or extension. Rather, it must explain why it found that that decision complies with EU fundamental rights standards (para. 70).

The new AG opinions are in line with the CJEU’s now well-established practice of heavily scrutinizing (some might even say micromanaging) EU blacklisting decisions in the realm of foreign and security policy by rigorously enforcing due process requirements on the Council. The LTTE opinion in particular echoes the CJEU’s distrust of listing decisions made by non-EU member States or the Security Council, and its view that EU fundamental rights law is supreme within the EU, famously articulated in the Kadi litigation. In the present context, this approach appears to require the Council to perform the tricky task of passing judgment on the adequacy of human rights protection afforded by other states.

The Hamas and LTTE cases are also good examples of how the Court’s heavy emphasis on procedure can sometimes produce peculiar outcomes, very clearly prioritizing form over substance. The GC and the AG essentially told the Council to put on blinders and ignore widely known facts about the activities of the organizations in question, at least until it is able to anchor them in national decisions. Hamas apparently did not even contest its involvement in terrorism in its application to the Court. The Council itself described the results of the GC’s reasoning as “absurd” (see paras. 17, 23 of the AG Hamas opinion).

It seems that the GC and the AG were somewhat aware of the implications of their conclusions, particularly in the Hamas case (see para. 86 of the AG Hamas opinion; para. 142 of the GC Hamas decision and paras. 101-108 of the AG LTTE opinion). Both took the trouble to make it very clear that they were not saying that Hamas is not involved in terrorism or that it should not be placed under sanctions; they were simply making the Council dot all the procedural i’s. In the AG’s words:

Both Hamas’ application at first instance and the Council’s present appeal were, quintessentially, about process rather than substance. In reaching my conclusions, I deliberately refrain from expressing any view on the substantive question as to whether conduct imputed to Hamas as assessed and established by decisions of competent authorities, warrants placing and/or retaining that group and/or its affiliates on the Article 2(3) list. This Opinion should therefore be read as being concerned exclusively with upholding the rule of law, respect for due process and the rights of the defence (para. 86 of the Hamas opinion).

This caveat hints at the delicate balance in CJEU sanctions case law. On the one hand, strictly enforcing due process requirements allows the Court to continue positioning itself as an ardent defender of fundamental rights and to conduct at least some oversight of the Council’s sanctions practices. On the other hand, the fact that the Court limits itself to procedural issues allows it to steer clear of overtly interfering with the substance of EU sanctions policy, or really blocking any policy options. The Council is largely free to reimpose annulled sanctions after fixing the procedural flaws that the Court had identified. That is why the CJEU’s impending judgments in the Hamas and LTTE appeals will not prevent the Council from keeping these organizations under sanctions if it so chooses, even if the Court agrees with the AG.