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The EU Courts

Neither the legislation on the "terrorist" lists (Common Position 2001/931 and Regulation 2580/2001) or on the incorporation of UN sanctions framework (Regulation 881/2002) make any provision for individuals or groups to challenge the incorrect freezing of assets as a result of erroneously being included. Moreover, the validity of EU Common Positions cannot be challenged before the Court of Justice, and national courts cannot ask the European Court questions about their validity or interpretation. However, those subject to freezing orders can apply to a member state requesting a "specific authorisation" to unfreeze funds and resources. After consultation with the other Member States, the Council of the EU and the European Commission the requested state can reject the application or grant the specific authorisation.

The Regulation and Decisions implementing them are subject to possible rulings by the European Court of Justice on their interpretation or validity, but this is undermined for Regulations connected to the Common Position. Thus, the only possible legal remedies are general principles of EU/EC law. There are two methods formally available at the EU level and several other possible avenues which commence with national litigation.

First, a Council Decision can be challenged by an annulment action according to Article 230 TEC. Second, damages may be sought from the Community institutions if there is harm as a result of their unlawful acts under Article 288 EC (the unlawful act for EU external blacklisted people and groups would be the freezing of their assets, whereas EU internal blacklisted people and groups would probably only be able to complain about damage to reputation). A number of cases have been lodged on these grounds (see below).

Less likely is the possibility that a listed "EU external" person or entity has assets (for example, a bank account) within an EU state which is frozen. That person or entity could, theoretically, bring an action under national law for breach of national law (for example, contract law) against the entity (the bank) for refusing to allow access to the asset (the account). The bank in turn will defend its action by reference to the regulation. The national court would than have to decide the issue of the lawfulness of the regulation, in turn (usually) requiring a request to the ECJ for a preliminary ruling under Article 234. It is also possible to argue, before the European Court of First Instance, on the basis of the "Borelli principle" that the Council decision is invalid because there is no valid and correct decision by a national competent authority justifying a blacklisting. Under EC case law, national decisions must be motivated by reference to objective and reviewable criteria, including where this is relevant, expert opinions and recommendations. Alternatively, one can challenge whether the considerations by the Council justifying the blacklisting decision are reasonable and proportional. Finally, one can argue that the preparatory decisions of the competent national authority and/or the Council decision violate fundamental rights. Even though the Charter on Fundamental Rights does not (yet) have a binding legal status, according to the well established case-law of the ECJ and Article 6 TEU, the EC is bound to respect fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, as general principles of Community law (Cameron, 2003 - see note 1).

Lawyers for one of the proscribed individuals have also challenged - unsuccessfully - the EU Council's decision to refuse access to the documents relating to the decision to include their client on the "terrorist" list.

Bowring and Korff (see legal analysis) urge caution over pursuing cases through the CFI and the ECJ, arguing that these courts are ill-equipped to deal with the matters in question and are likely to adopt a minimalist approach to any judicial review they may carry out of the Common Positions and Regulations concerned. They suggest that this could set a bad precedent for any Strasbourg adjudication on the matter. Instead they recommend:

• that legal challenges are pursued with vigour at the national level, first of all in countries in which it is likely that the courts will decline jurisdiction on the basis that the issue is entirely determined by EC/EU law: this would allow for an immediate submission thereafter of an application to the European Court of Human Rights; and
  
• that an organisation pursue challenges in countries in which it has a good chance of the domestic courts being willing to hold (either on the basis of the ECHR, where the Convention is directly applicable and given a high status, or on the basis of the national constitution) that they should be granted full “access to court”, with the (domestic) court in question being able to assess the underlying matters of law and fact in full.

For information on the procedures used in the UK, US, EU and UN frameworks see "comparative analysis"

The European Court of First Instance

The European Court of Justice

The European Court of Human Rights

The European Court of Human Rights has held that all judicial remedies (including the EU Courts) must be exhausted before it can consider any cases - leaving applicants facing lengthy procedures.

• See: Judgment (23 May 2002) in Case Nos. 6422/02 and 9916/02, SEGI association, Gestoras Pro Amnistía and Others vs. Council of the European Union.