Op-Ed: “Court of Justice confirms Council’s reliance on decisions of national authorities in order to renew counter-terrorism sanctions against the PKK” by Celia Challet
On 22 April 2021, the Court of Justice handed down its judgment in Council v PKK (C-46/19 P), in which it ruled on the renewal of counter-terrorism sanctions against the Kurdistan Workers’ Party (PKK). It partially struck down the General Court’s judgment in T-316/14, which had annulled the PKK’s listing.
This case touched upon one of the most fundamental aspects of the EU’s counter-terrorism sanctions practice: the Council of the EU’s ability to rely on national authorities’ decisions designating a person or entity (in this case, the PKK) as involved in terrorist activities. Indeed, verifying that there is a decision of a competent authority within the meaning of Article 1(4) of Common Position 2001/931 is an essential precondition for the adoption and renewal, by the Council, of counter-terrorism sanctions. The Court also stated in its LTTE (Joined Cases T‑208/11 and T‑508/11) judgment that before acting on the basis of a decision of a third State’s authority, the Council must verify that the legislation of that State ensures protection of the rights of defence and of the right to effective judicial protection in a manner that is equivalent to that guaranteed at EU level.
The background to the case is the following: in order to justify retaining the PKK on the sanctions list, the Council had relied on, inter alia, decisions of the UK Home Secretary and of the US Government which designated it as a terrorist organisation. The Council considered that these decisions were adopted by ‘competent authorities’ within the meaning of Common Position 931/2001, which thus constituted a sufficient basis to maintain the PKK’s listing. It also relied on a list of incidents which it considered as terrorist acts attributable to the PKK and which allegedly proved that there was still an ongoing risk that the PKK carries out terrorist acts.
The General Court annulled the PKK’s listing based on an infringement by the Council of its obligation to state reasons. It considered that it had not complied with the LTTE requirements when relying on the decisions of these national authorities. According to the General Court, the Council had not established that the decisions of the US and of the UK authorities constituted decisions taken by ‘competent authorities’. It also had not examined whether the specific facts on which these authorities relied fell within the scope of the concept of ‘terrorist act’. In other words, the Council had merely repeated the grounds of decisions of these national authorities without verifying whether they were well-founded, which it was required to do. Such an obligation was all the more applicable, according to the General Court, in the case of decisions that originated from a third State. In addition, the General Court stressed that the Council had not verified whether the decisions of the US authorities had been adopted with due regard for the rights of the defence and the right to effective judicial protection.
In a global way, the General Court also recalled that the Council must frequently review the situation of the listed individuals and entities, and that the latter can only remain on the list if the Council establishes that there is an ‘ongoing risk of that person or entity being involved in the terrorist acts which justified their initial listing’. In its judgment, the General Court stressed that a significant period of time elapsed between the adoption of the decisions which served as the basis for the initial inclusion of the applicant’s name in the sanctions list. As a result, the decisions of the UK and US authorities were no longer a sufficient basis for the Council to consider that the risk of the applicant’s involvement in terrorist activities persisted. The Council was thus obliged to rely on more recent evidence, which, according to the General Court, it did not do.
In its appeal judgment, however, the Court of Justice took a different position. Although essentially referring to the principles that have already been laid down by the LTTE judgment, it seems to have taken a less strict position than the General Court as regards the Council’s obligations when renewing counter-terrorism sanctions.
The Court recalled that the mere fact that a national decision that served as the basis for an initial listing is still in force may no longer be sufficient to justify retaining a person on a list, especially when a long period of time has elapsed. The Council must thus establish that there are sufficient reasons to retain a person or entity on its sanctions list. However, the Court of Justice ruled that the Council was not required to establish the truth of the facts underlying the reasons relied on in order to maintain the PKK’s listing, nor to provide a legal classification of those facts in the light of Common Position 2001/931. This solution, which differs from the one that had been reached by the General Court, is of particular importance for the Council’s sanctions practice. Had the Court confirmed the General Court’s reasoning, the Council would have been faced with a much higher burden of proof to comply with when renewing the counter-terrorism sanctions.
Based on this approach, the Court of Justice considered that the Council had in fact relied on adequate reasoning to keep the PKK on the sanctions list on the basis of the UK Home Secretary’s decision. The Council had stated that the decision had been adopted by a competent authority within the meaning of Common Position 931/2001, that it was subject to regular checks by a government committee and that it was still in force. According to the Court, the Council had thus carried out sufficient verifications as regards the UK Home Secretary’s decisions. It had also provided sufficient reasons for the PKK to understand why its listing had been renewed. Interestingly, the Court did not address the question of whether the decisions of the US Government could be considered as decisions of ‘competent authorities’ within the meaning of Common Position 2001/931. One could assume that since the Court has referred the case back to the General Court, it might have wished to avoid taking an official stance on this matter.
Overall, and to conclude, the Council v PKK judgment provides yet another example of the legal questions surrounding the Council’s ability to rely on decisions of national authorities. The fact that the Council appealed the first instance judgment and that France and the Netherlands intervened in the appeal case is a clear indicator of that. Given that when imposing counter-terrorism sanctions the Council relies essentially on evidence and decisions originating from national authorities, the delimitation of the notion of decisions of competent authorities is of crucial importance for its sanctions practice. It is also in the Member States’ interest that the Council retain some discretion to rely on national intelligence and decisions in order to add alleged terrorist organisations or individuals on the EU’s sanctions list. In that regard, the Court of Justice’s ruling might have clarified the balance that must be struck between two imperatives. One the one hand, the Council must be required to carry out in-depth verifications of the national authorities’ decisions on the basis of which it imposes sanctions. On the other, requiring the Council to verify the truth of the facts established by such decisions could set an excessively high burden of proof and ultimately undermine the effectiveness of EU counter-terrorism sanctions. While being most of all a confirmation of the LTTE judgment, the Court of Justice’s ruling in Council v PKK thus provided developments on some of the practical implications of that landmark case law.
Celia Challet is Ph.D. candidate at Ghent University (Belgium) and Academic Assistant in EU law at the College of Europe.