Advocate General Sharpston, the UK’s Advocate General at the Court of Justice in Luxembourg, has given detailed Opinions in 2 appeals from the General Court to the ECJ concerning terrorist asset freezing; Case C-599/14 P Council v LTTE and C-79/15 P Council v Hamas. These are important opinions (which do not bind the ECJ when it gives its judgment in the next few months) on the 2-tier system by which the EU freezes the assets of terrorist organisations.
The 2-tier system for terrorist designations (which does not exist for any other EU sanctions regime) requires 1st a decision of a national competent authority that there is a risk that an organisation is involved in terrorist acts, and 2nd an assessment by the EU Council that the competent authority respects rights of defence and judicial protection and bases its decisions on sound evidence. The General Court held that the designations of the LTTE and Hamas should be annulled (see previous blogs LTTE & Hamas) because the EU Council had not verified whether the national competent authorities in those cases had sufficient safeguards, and instead had carried out its own internet searches rather than relying on assessment by a competent national authority.
The Advocate General’s opinions in these cases agree that the designations should be annulled. Her key points are that:
- When the Council relies on the decisions of a competent authority of a non-EU state, it must explain in its reasons why that decision provides the equivalent protection as the EU for rights of defence and judicial protection.
- The Council must analyse and explain why a re-listing remained justified, rather than just relying on the previous national decisions and public material that had not been assessed by the national authorities. The Council cannot itself find facts in this context but must use the duty of sincere cooperation to seek evaluation by the Member States.