This document summarizes the judicial control of restrictive measures in the EU in three points: I. The scope of review by the EU courts has expanded in recent years. While the ECJ generally does not review CFSP issues, it will review restrictive measures against persons based on EU regulations. The General Court has seen increasing cases regarding sanctions. II. The standard of review is now full judicial review, but the courts make distinctions in their scrutiny of general listing criteria versus individual decisions. They also balance security concerns with procedural rights when classified evidence is involved. Evidence requirements depend on context but cannot involve mere presumptions. III. Litigation has had mixed effects as sanctions are often re-imposed with new criteria

1. Judicial control of restrictive
measures in the EU
ERAERA
25 September 201525 September 2015
Marc van der WoudeMarc van der Woude

2. IntroductionIntroduction
I.General observations
II.The scope of the review
III.Practical observations
NB:
all comments are purely personal
focus on last two years

3. I. General observations: the
legal basis for the review
As a rule no judicial control by ECJ on CFSP issues, except where
restrictive measures against legal and natural persons (275 TFEU)
CFSP decision
Member States implement decision
TFEU part , Regulation ex 215 TFEU
Follow on UN sanctions and autonomous sanctions

UN implementation, no reason not to control (Kadi I, C-
402&415/05 P)

4. I. General observations:
categories and interactions
Multi layered sanctions (typically terrorists, such as Al Qaida, Hamas, Tamil
Tigers)

Interactions with UN, national systems and/or third country decisions
(reasons for listing in decision of competent authority with subsequent
EU control: see Hamas, T-400/10)
EU level sanctions (e.g. country sanctions (Iran, Syria, Byelorussia):

System of its own, with listing criteria and decisions applying them

General decisions and implementing decisions (who does what ? NIOC
T-578/82))

Initiative with Member States

5. I. General observations: the
activity of the General Court
2010 2011 2012 2013 2014 2015 (Q2)
Incoming 21 93 59 41 68 35
% 3.3 12.8 9.5 5.1 7.4 9.3
outgoing 10 32 42 40 68 32

6. I. General observations: the
activity of the Court of Justice
In period 22 judgments rendered on appeal of
which 7 leading to annulment of GC ruling
2010 2011 2012 2013 2014 2015
incoming 7 17 6 7 7 10
appeals 3 6 5 6 6 8

7. I. General observations:formal
and substantive issues
A blurred distinction : Kadi II (C-584, 593 and 595/10 P)
•Formal rights : legal basis, procedural safeguards and
reasoning (grounds 117 and 118)
•Control of veracity : access to underlying information (Kadi
II, ground 119)
Formal issues becoming less relevant:
•Context may help to explain : Bamba C-417/11
•Outcome oriented approach: Persia International Bank T-
439/10,

8. II. The scope of review : the
intensity of review
Kadi II: full review is the rule
However,

Distinction general listing criteria and
individual decision (NIOC T-578/12)

One reason is enough (Kadi II and Kala Naft,
C-348/12 P)

Balancing act on the basis of available
information (Kadi II, ground 125, see below)

9. II. The scope of review : the
issue of secret documents
Kadi II, grounds 125-129, balancing act:

legitimate security reasons  procedural safeguards
if authority refuses, on the basis of available info
if secret, alternatives
New rules of procedure : Article 105

unlike Article 103, right to refuse and right to withdraw

possibility to take confidential elements into consideration
Link with legality review (ground 111 Kadi II)

10. II.The scope of review : the
evidence required
Kala Naft :

need to take account of regulatory framework (link oil industry
and proliferation

relying on non-contested elements in the file
Anbouba, C-630/13 P : no presumptions; but bundle of converging
indicia to be interpreted in light of context (war, urgency, difficulties to
collect evidence)
Bouchra Al Assad, T-202/12 : family links if manifest and foreseen by
criteria
Bateni, T-42/12: freshness of the evidence

11. III.Practical observations:
what do applicants want ?
IOEC, T-110/12 : reasoning and substance
Ayadi, T-527/09 RENV, but it must
sufficiently be clear that applicant contests
substance

12. III. Practical observations: are
the sanctions targeted?
No possibility for individuals to challenge general
measures, only if 263 TFEU with possibility of 277 TFEU
(see Hemmati, T68/12)
Distinction between general and targeted is blurred when
using very wide criteria : support to regime, control by
entities already listed
Paradoxical results: burden of proof seems lower for
indirect support than for direct support

13. III.Practical observations: is
judicial control relevant?
High annulment rates, but many subsequent re-inscriptions and/or new
criteria, leading to an ongoing stream of litigation

ne bis in idem for preventive measures limited in time ?
The effects of the annulment ruling in time, diverging practices

application of Article 60 Statute to Regulation and by analogy to
Decision

Article 264 TFEU with various periods, National Tanker T-
565/12, Hamas and Sharif University T-181/13
Actions for damages, Sepahan, T-384/11