ECJ, C-403/06 XX v. Council & C-399/06 XX v. Council and Commission, 2009
- United Kingdom
TopicsIslamic extremism Terrorist recruitment Membership in a terrorist organisation Public security
Legal basesEuropean Convention on Human Rights
CourtsEuropean Court of Justice (ECJ)
LawsRight to a fair trial Proportionality Right to property
Mr XX, a Libyan national residing in the United Kingdom, and Mr XX, a Tunisian national residing in Ireland, were designated by the Sanctions Committee of the United Nations Security Council as being associated with Usama bin Laden, Al-Qaeda or the Taliban. In order to give effect to the associated resolutions within the European Community, the Council adopted a regulation ordering the freezing of the funds and other economic resources of the persons and entities whose names appeared in a list annexed to the respective regulation. On 19 October 2001 Mr XX’s name, and on 12 November 2004 Mr XX’s name, were included in the list annexed to the Community regulation. The actions for annulment brought before the Court of First Instance by Mr XX and Mr XX were dismissed on 12 July 2006. In September 2006 Mr XX and Mr XX brought appeals before the Court of Justice against those judgments. In September 2008 the Court of Justice ruled on the appeal brought against the judgments in Yusuf and Kadi at first instance (‘Kadi on appeal’). It held that the Community judicature does have jurisdiction to review the measures adopted by the Community to give effect to resolutions of the United Nations Security Council. Thus it set aside the judgments of the Court of First Instance. Then it annulled the fund-freezing regulation, considering that the latter had been adopted in breach of the fundamental rights of the persons concerned, but maintaining its effects for a period of three months to allow the Council to remedy the infringements found. On 13 October 2009 the Commission adopted a new regulation amending the fund-freezing regulation by which the decisions to include Mr XX and Mr XX in the fund-freezing list were replaced by new decisions confirming their inclusion. According to the preamble to this Regulation, the Commission adopted that regulation in the light of the Court’s decision in Kadi on appeal, after apprising Mr XX and Mr XX of the grounds for their inclusion in the list, as provided by the Sanctions Committee and after examining the comments made by the appellants concerning those grounds. That regulation, which entered into force on 15 October 2009, applies with retroactive effect as from the original inclusion of Mr XX and Mr XX in the list. That regulation has not been challenged in these proceedings.
Articles 60, 301 and 308 of the EC; Article 1 of Protocol No. 1; Article 6 of the ECHR.
The Court considered that the adoption of Regulation No 954/2009 cannot be regarded as equivalent to annulment pure and simple of the contested regulation. The Court found that the appeals have not become devoid of purpose and that it is necessary for the Court to adjudicate them. On the substance of the cases, the Court found that, inasmuch as the grounds in law of the judgments under appeal are the same as those relied on in Yusuf and Kadi at first instance, which have been set aside by the Court, those judgments are marred by the same error in law and must, therefore, be set aside. Next, the Court pointed out that the actual circumstances giving rise to the inclusion of Mr XX and Mr XXs names in the fund-freezing list are identical to those of Mr XX. The Court’s conclusion in Kadi on appeal, that the rights of defence – in particular, the right to be heard and the right to effective judicial review of observance of those rights – and the fundamental right to property had not been respected must, therefore, also be reached in these cases. In those circumstances, the Court refers to amended in 2018 Council Regulation (No 46/2008 of 18 January 2008) on freezing the funds and economic resources that concerns Mr XX and Mr XX.