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EU Fundamental Rights and Counter-Terrorist Blacklisting in the Next Round: The El Morabit Decision of the CFI (T-37/07 and T-323/07)

A brief follow-up on the ECJ’s Kadi decision and the Court of First Instance’s (CFI) – slightly less famous – PMOI decisions we reported earlier on (see here, here and here). The Kadi decision dealt with an EU regulation implementing a UN blacklist which provided for the freezing of financial means of suspected Al Quaida and Taliban member. Similarly, the PMOI dealt with an (autonomous) EU blacklist on other terrorist suspects. In both cases, the Courts had declared the blacklists to be violating EU fundamental rights for procedural reasons.

On 2 September of this year, the CFI has further developed the European case law in this respect by handing down its decision in the joint cases T‑37/07 et T‑323/07 El Morabit v Council of Ministers (since the case is currently not available in English, this note refers to the French version).  The case concerned a Moroccan living in the Netherlands, who was suspected to be a member of a terrorist group. After being convicted by Dutch court of first instance, the EU Council of Ministers decided to put him on its autonomous EU blacklist. El Morabit contested this decision before the CFI. El Morabit alleged, in particular, that the Council had not taken into account that he had appealed the decision to the court of appeal. This violated, in his view, the presumption of innocence, enshrined in Article 6 (2) of the ECHR and Article 48 (1) of the EU Charter of Fundamental Rights.

The CFI did not concur with the plaintiff’s submission. The CFI stated, among other things, that the EU’s blacklists do not constituted a criminal punishment and that the standards regarding the presumption of innocence did not need be the same one (paras. 45 and 47). The standard of proof of “serious and credible proof and indicia” (« preuves ou des indices sérieux et crédibles ») required by the relevant EU Regulation 2580/2001 was considered sufficient. The CFI further considered that this standard was met in the present case. The fact that the Council had based itself on the national court’s assessment provided, in the CFI’s view, sufficient evidence for “serious and credible proof and indicia” (para. 48). This finding was further corroborated by the fact that the Council had removed El Morabit from the blacklist after the Dutch court of appeal had annulled the judgment in first instance – despite the fact that the Dutch public prosecutor had appealed against the court of appeals’ decision (para. 50). The CFI noted, rather in passing, that the blacklists were a proportionate mean in the fight against terrorism (paras. 62 and 63).

While the specific circumstances of the case allowed the CFI an easy way out, a number of open questions remain.

First, the CFI was astonishingly brief on the fundamental question what the precise standard of the presumption of innocence vis-à-vis the blacklisting measures should be. No ECJ or ECtHR decision is cited to corroborate the CFI’s find, which is no surprise as the European case law on these issues is sparse. However, the ECtHR’s main criterion for a criminal charge – the nature of the sanction – suggests that the notion of a criminal charge of the ECtHR could very well apply to the blacklisting measures. Indeed, the consequences of being on the blacklist, i.e. freezing of assets frozen and travel bans, are not necessarily less far-reaching in their implications of citizens’ life than criminal penalties. It is therefore not impossible that the ECJ might take a rather different view on this than the CFI.

Secondly, the role of proceedings before national courts for the Council’s blacklisting assessment is not at all clear. Here, it is be interesting to hypothesize about the Court’s assessment in slightly changed circumstances. In particular, the question arises what would have happened if the Council had not removed the plaintiff from the blacklist despite the fact that the national court had quashed the plaintiff’s conviction. Would the Court have upheld the Council’s decision? And would it have mattered that the public prosecutor had lodged an appeal against the acquittal?

The El Morabit judgment shows that the details of the judicial protection against counter-terrorist blacklists have yet to be clarified (for a more detailed review see here). The Kadi-case is already back before the CFI (Case T-85/09, pending), which is hardly surprising given that Kadi’s name was put on the blacklist again only a few months after it had been removed by the ECJ. This and other cases will give the European judiciary the opportunity to show how serious it takes the protection of their citizens’ fundamental rights when it comes to the crunch. Qui vivra verra!

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