On 4 December the Court of First Instance delivered its judgment in the matter People’s Mojahedin Organization of Iran (“PMOI”) v Council of the European Union (Case T‑284/08), where it declares one of the EU’s key instruments for the “fight against terrorism” partly unlawful.
This case concerns Council Decision 2008/583/EC of 15 July 2008 which implements Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism. This Regulation provides for the freezing of funds of persons being suspected of terrorist activities. The list containing the names of the natural or legal persons whose assets are to be frozen is established by a separate Council decision.
This and other Community measures have given rise to numerous issues relating to their compatibility with basic human rights standards. This was recently demonstrated by the ECJ decision in the Kadi case, where the ECJ declared another counter-terrorist regulation unlawful (Case C-402/05, we reported on this issue earlier).
In the present case, the Iranian opposition group PMOI brought an action against the Council in order to be removed from the Council’s blacklist. Some months before the PMOI had succeeded in obtaining a judgment from the British Court of Appeal that obliged the British Home Secretary to remove the PMOI from the national black list. Nonetheless the Council maintained the name of PMOI on its own blacklist, arguing that this was justified by new information which had in the meantime been delivered by the French government.
PMOI attacked this decision on six grounds:
(1) Manifest error of assessment of the evidence
(2) Breach of certain procedural requirements laid down by Regulation (EC)
No 2580/2001 and the underlying Common Position 2001/931
(3) Breach of the applicant’s right to effective judicial protection
(4) Breach of the rights of the defense and of the obligation to give reasons for a decision
(5) Abuse or misuse of powers or procedures
(6) Breach of an essential procedural requirement regarding the adoption of
the Council decision
The Court dealt with the last claim first. This claim concerned the voting procedure of the Council Decision in question (paras. 27-35). PMOI based its allegation on a statement of the British secretary of foreign affairs according to which the government representatives could not vote on the specific names on the list but only on the entire list as such. This would have contravened certain procedural requirements established by Regulation (EC) No 2580/2001. This claim could however not be proven as the Council presented evidence to the contrary. The Court did therefore not uphold the claim of PMOI.
By contrast, the Court held that the fourth and the fifth claim of the applicant were well-founded (paras. 36-48). The reason for this was the Council’s omission to inform PMOI about the new information which was invoked to justify maintaining PMOI on the blacklist. In an earlier decision, the Court had already stated that informing the person concerned of the information before adopting the decision in question was an essential procedural requirement. The Court applied these principles also to the present case and accordingly came to the conclusion that the fourth claim was founded. Moreover, the Court stated that the “Council’s omission (…) may be material to any consideration of the abuse or misuse of powers or procedures alleged in the fifth plea in law” (para. 44).
Interestingly, the Court did not stop at this point but continued to examine the second and the third question “having regard to their importance in relation to the fundamental right to effective judicial protection” (para. 48). The Court concluded that both the procedural requirements in question as well as the PMOI’s right to effective judicial protection had been infringed by the Council decision. The Court, however, did not deal with the first claim which alleged that the decision on the matters was manifestly incorrect.
All in all, the Court of First Instance came to the conclusion that the Council Decision 2008/583/EC was unlawful and invalid as far as it concerned the applicant. This case is not the first case that PMOI has won against the Council. In the Case T‑228/02, of 12 December 2006 the Court of First Instance quashed a preceding Council decision for a number of violations of the applicant’s procedural guarantees. The Court annulled also a later Council decision (Case T‑256/07 of 23 October 2008) because it did not take into account the judgment of a competent judicial authority, according to which PMOI should be removed from the national black list (for more information see the following press report).
A fourth part of the saga is currently pending before the Court of First Instance and is likely to be decided in 2009 (Case T-156/07, see here for the application).