EU IMPLEMENTS UN UPDATES TO IVORY COAST SANCTIONS

On 27 January 2015, the European Union published Council Implementing Regulation (EU) 2015/109 (which amends Council Regulation (EC) No 560/2005) and Council Implementing Decision (CFSP) 2015/118 (which amends Council Decision 2010/656/CFSP).

The measures implement the United Nations Sanctions Committee’s decision on 20 November 2014 to remove Alcide DJÉDJÉ from the list of those subject to sanctions in view of the situation in the Ivory Coast.

A full list of EU sanctions currently in force against the Ivory Coast can be found on the ‘sanctions in force’ section of this blog.

EU RE-LISTS 3 SYRIAN PEOPLE AND A COMPANY

We reported on 13 November 2014 that three people and one company that were added to the EU’s restrictive measures against Syria won their applications to annul their listings in the EU General Court (see previous blog).  The Council of the EU has today (27 January 2015) published new measures re-listing all of them on the basis of new statements of reasons.

The people are Aiman Jaber, Khaled Kaddour and Mohammed Hamcho, and the company is Hamcho International.

The new Decision and Implementing Regulation are on the sanctions in force section of this blog.

The proposal to re-list them was subject to scrutiny last week by the UK House of Commons’ European Scrutiny Committee, as we reported. The UK Minister for Europe was asked to confirm “that he considers the reasons now given for the restrictive measures, and the underlying evidence, to be sufficiently robust to deter or withstanding further legal challenge”.

The re-listed companies and people have two months to apply again to the European Court annul their designations if they choose to do so. A notice for data subjects (the same people / entities) under the EU data protection Regulation (EC) No 45/2001 has been published, informing them that the data controller is the Council of the EU and giving contact details in relation to the data processing operation.

 

 

EU EMERGENCY MEETING ON SITUATION IN UKRAINE

Federica Mogherini, the High Representative of the European Union for Foreign Affairs and Security Policy, has called for an emergency meeting of EU Foreign Ministers in Brussels on Thursday 29 January 2015 to discuss further potential sanctions against the Russian Federation following the recent increase in violence in Ukraine.

On 24 January 2015, an attack by separatist rebels in the southeastern Ukrainian city of Mariupol killed at least 30 civilians, with 107 injured. The escalation of violence prompted an emergency meeting of the UN Security Council on 26 January 2015.

The United States has also signalled that it is considering further sanctions against Russia. President Obama stated that the US is “deeply concerned about the latest break in the cease-fire and the aggression that these separatists – with Russian backing, Russian equipment, Russian financing, Russian training and Russian troops – are conducting.  And we will continue to take the approach that we’ve taken in the past, which is to ratchet up the pressure on Russia.” He added that the US will “look at all additional options that are available to us short of military confrontation and try to address this issue.”

 

 

HOUSE OF COMMONS COMMITTEE QUESTIONS NEW SYRIA AND IRAN LISTINGS

The House of Commons’ European Scrutiny Committee said on Wednesday of this week (report here) that it is considering the UK Government’s proposals to re-list 3 people and 1 entity said to be associated with the Assad regime in Syria on the EU’s asset freeze / travel ban measures (which are on the ‘sanctions in force’ section of this blog).  All had their previous designations annulled by the EU General Court.

The Committee states that it supports “the principle that restrictive measures should be both targeted and legally robust” and comments that “it is not evident that this is the case with these proposals, particularly given the background, which includes the Council being unable to provide sufficient supporting evidence for the original restrictions using open sources when invited to do so in court hearings last June”.  The Committee asked the UK Minister for Europe “to confirm that he considers the reasons now given for the restrictive measures, and the underlying evidence, to be sufficiently robust to deter or withstanding further legal challenge” and noted that “similar issues are raised by the restrictive measures against Iran”.

NEW EU COURT RULES TO BE ADOPTED WITHOUT UK APPROVAL

Further news on our post yesterday about new EU court rules…  The Europe Minister, David Lidington, has informed the UK House of Commons’ EU Scrutiny Committee (report here) that:

1) The proposed new rules for the European Court to take into account closed evidence have qualified majority support (i.e. the necessary support of Member States to be approved), and the Committee has cleared the rules from its scrutiny.

2) The UK will abstain from voting on the rules in the Council of the EU, because the rules do not meet UK requirements in two respects: (1) they would not enable confidential information to be withdrawn at any time; (2) they do not provide for judgments to be checked for accidental disclosure of sensitive information before being issued.  The UK will lodge a statement making clear that “the absence of these safeguards will limit the types of information that the UK will be able to submit to the Court and seeking a review of the mechanism in the light of practical experience.

3) The new measures enabling the Court to consider evidence not made available to the other party “are likely to be called upon in only a limited number of cases, since it is often possible to sufficiently justify restrictive measures using non-confidential information” and that “other Member States accepted the Court’s position that such special measures needed to be proportionate and did not push for an equivalent to the UK Special Advocate provisions.

4) He summarised how the proposed new Article 105 will work:

The party who does not have access to the material will at all times know that an application to treat information as confidential has been made by the other party, and will have sight of the non-confidential reasons cited for the use of a closed procedure. The Court will decide where material is relevant for the purposes of its decision and also whether that material is confidential for the purposes of the case.

If material is relevant and confidential, the Court will order what procedures need to adopted, such as the production of a non-confidential summary to be disclosed to the other party. At that stage, the party who has produced the evidence can withdraw it, but Article 105 makes it clear that in those circumstances, any material which is withdrawn will not be taken into account in determining the case. Only in narrow circumstances can the Court take into account material which is not disclosed to the other party. It will, however, always take into account, in its assessment of that material, that it has not been disclosed to the other party.

See our previous posts (e.g. here and here) about potential Article 6 ECHR concerns with these new provisions.

BANK TEJARAT WINS APPLICATION TO ANNUL ITS EU SANCTIONS LISTING

Bank Tejarat, an Iranian bank, has had its listing on the EU’s sanctions relating to Iran annulled by the General Court (First Chamber), in Case T-176/12 Bank Tejarat v Council (link to the judgment is here).

The Bank has been listed since 2012 on the grounds that it is a State owned bank that has facilitated Iran’s nuclear programme in various ways.  The Bank denied all of these allegations (including majority State ownership) and the Court held that the Council had not provided any evidence to substantiate the allegations against the Bank.  The Court has maintained the sanctions on Bank Tejarat for 2 months to permit the Council to remedy these defects if it should seek to do so.

MOHAMMAD MAKHLOUF LOSES CHALLENGE TO EU SYRIA SANCTIONS

195px-european_court_of_justice_insignia-svgMohammad Makhlouf has lost his application for the General Court of the European Union to annul his listing on the EU’s Syria sanctions.  A link to the judgment in Case T-509/11 Mohammad Makhlouf v Council is here (available only in French).

Mr Makhlouf was included in the EU’s restrictive measures against Syria in 2011 because he is the uncle of Syrian President Bashar Bashar Al-Assad, and a business associate and father of Rami, Ihab and Iyad Makhlouf.  He challenged the Council of the EU for not respecting his fundamental rights, rights of defence and judicial review, the duty to give reasons, and for making an error of assessment.  The Court rejected all these arguments, holding in particular that being a close family member of the President of Syria is sufficient for Mr Makhlouf to be considered to be an “associate” of the Syrian regime, and that the evidence was uncontested that he provided the regime with economic support.

EU TO APPROVE NEW COURT RULES TO PERMIT SECRET HEARINGS

We previously reported that the European Court of Justice had approved a proposal from the General Court (the first instance court in Luxembourg) to enable the EU institutions to rely on undisclosed evidence in actions for annulment, in particular in sanctions cases, and that the new draft of the General Court was before the Council of the European Union for approval.

Reports today (see e.g. Wall Street Journal) suggest that these new rules of court are about to be approved by EU Member States, and were approved on 11 December 2014 by “senior officials from EU governments”.  The latest version of the new draft rules is here.

According to the Laurence Norman of the WSJ, “the changes were initially due to be agreed next Tuesday, but the U.K. has asked for more time, according to the officials, citing reservations about the proposal. “We recognize the value of this kind of procedure. But it will be important to ensure that adequate safeguards are in place for confidential information shared with the court,” a U.K. diplomat said.”