Brief on December 2008 Judgment of the Court of First Instance of the European Communities in PMOI v. the Council of the European Union
1. On December 4, 2008, the Court of First Instance of the European Communities annulled for the third time the Council’s decision to include the People’s Mojahedin Organisation of Iran (PMOI/MEK) on the EU terror list (See EU Court 2008 Ruling Press Release and Wall Street Journal report). Subsequently, on January 26, 2009, the European Union removed the PMOI from its list of banned terror organizations. (See the New York Times report “EU removes Tehran opponents from terror list”)
The Court First Instance said in its ruling that it:
- Annuls Council Decision 2008/583/EC of15 July 2008implementing Article 2(3) of Regulation No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2007/868/EC, in so far as it concerns the People’s Mojahedin Organization of Iran.
- Orders the Council to bear, in addition to its own costs, the costs of the People’s Mojahedin Organization of Iran.
2. The two basic obligatory conditions for listing persons or groups according to related regulation are as follows:
- There must be a decision by a competent [judicial] national authority in respect of the concerned entity, which is based on “serious and reliable evidence or clues”. (Article 1(4) of the Common Position 2001/931/CFSP).
- The designation must meet the condition set in Article 2(3) of the Regulation 2580/2001, which requires the entity to be engaged in “committing, or attempting to commit, participating in or facilitating the commission of any act of terrorism”.
3. The Court concluded that on both accounts the Council had failed to meet those requirements.
4. The Court also found that, in the course of adopting the decision, the Council had violated PMOI’s rights of defence and effective judicial protection.
5. Finally, the Court underlined that the degree to which the Council had violated PMOI’s fundamental rights was serious evidence of abuse of power or procedures.
The consequences of the Judgment
- The PMOI is no longer on the EU terror list. The EU Council is obligated to implement the ruling immediately.
- According to Article 242 of the EC Treaty “the Action brought before the Court of Justice will not have suspensory effect”. Therefore, Even if the Council were to make an appeal to the Court of Justice, it must, nevertheless, implement the CFI judgment.
- The annulled decision was the latest Council’s decision still in effect. Therefore, no other decision exists on the PMOI.
- The decision was annulled both on procedural grounds as well as on the basis of the Council’s failure to substantiate its allegations of terrorism against the PMOI.
- Paragraph 42 of the verdict states that one way to annul the Council Decision and delistian organization is a ruling issued by the Court calling for annulment. The Court had also stated in its previous judgment that when the Court annuls an act, it “is eliminated retroactively from the legal order and is deemed never to have existed”.
The Court rejects Council’s application for delaying the implementation of the judgment
- On 4 December, the European Council lodged an application with the CFI for interpretation of the judgment. The Council, in particular, asked the Court to endorse its contention that the judgment should not be implemented until the end of the time limit for appeal, or in the case of appeal, until the appeal is determined.
- The Court refused to endorse the Council’s interpretation. It dismissed the Council’s application, arguing that the Council does not even claim that any parts of the judgment, including its operative or essential grounds are affected by an obscurity or ambiguity.
- On those bases the Court stated in its order of 17 December that it has enough information to make a determination and there is no need for further proceeding. As such the Court concluded that the Council’s application “must be rejected as manifestly inadmissible.
- In conclusion, the Court’s Order of 17th December put an end to any attempt by the Council to defy or even delay the implementation of the judgment.
The Council failed to substantiate PMOI designation
- In its Statement of Reasons the Council had concluded that the PMOI “falls within Article 2(3)(ii) of Regulation 2580/2001”, accusing the organisation of being engaged in “committing, or attempting to commit, participating in or facilitating the commission of any act of terrorism.”
- The Court in paragraphs 56, 59 and 78 unequivocally rejected the Council’s assertion. On the contrary, it concluded that there was no evidence to substantiate such a claim. Accordingly, it annulled the Council Decision.
Paragraph 56: “In the present case, the Court finds that neither the information contained in the contested decision, its statement of reasons and the letter of notification, nor even those contained in the Council’s two answers to the Court order of26 September 2008, comply with the requirements in respect of proof which have been recalled above. In consequence, it has not been established to the required legal standard that the contested decision was adopted in accordance with the provisions laid down in Article 1(4) of Common Position 2001/931 and Article 2(3) of Regulation No 2580/2001.”
Paragraph 59: “In the light of the applicant’s factual and legal contentions, neither the explanations so provided by the Council, nor the documents produced by it, make it possible to consider that the contested decision is well-founded in law, more particularly with regard to the provision laid down in Article 2(3) of Regulation No 2580/2001.
Paragraph 66: “Nor is it possible, in the absence of more accurate information, to verify the truthfulness and relevance of the allegation made in the statement of reasons, according to which several of the alleged members of the applicant are being prosecuted for a series of offences in connection with a terrorist undertaking. In this respect, the applicant maintains that, apart from the judicial inquiry opened inFrance in 2001, it knows of no member or supporter whatsoever being prosecuted in aMemberState for financing terrorist activities or any other criminal activity in relation to the applicant, contrary to what is asserted in the statement of reasons. Moreover, none of its members or supporters has ever been convicted of unlawful activities relating to terrorism or its financing. The Council did not in any way refute those assertions in its defence.”
Paragraph 78: “In such circumstances, it must be concluded, first, that it has not been established that the contested decision was adopted in compliance with the provisions of Article 1(4) of Common Position 2001/931 and of Article 2(3) of Regulation No 2580/2001 and, second, that the very circumstances of its adoption infringe the applicant’s right to effective judicial protection.”
The French inquiry not based on credible evidence
The Council Decision on15 July 2008, maintaining the PMOI on the terror list was based on the French inquiry as the decision by a national competent authority. The Court did not recognise, either in substance or in form, that the French inquiry met the required criteria for listing the PMOI. This also dealt a major blow to the inquiry itself. In substance, despite the claim by the French authority, the Court concluded that that the French inquiry lacks adequate evidence.
- Paragraph 68: “It must also be noted that nothing in the file makes it possible to establish that the judicial inquiry opened in France in April 2001, even assuming that it is attributable to a ‘judicial authority’, which is denied by the applicant, is based, in the assessment of that authority, on serious and credible evidence or ‘clues’, as prescribed by Article 1(4) of Common Position 2001/931.”
French Inquiry not in respect of the PMOI
The Court also concluded that the Council had failed to identify a decision by a national competent authority meeting the definition required by law. Indeed, the Decision which the Statement of the Reasons claimed to have been in respect of the PMOI was established not to be case.
- Paragraph 57: “More specifically, the Council has not provided the Court with any precise information or material in the relevant file which indicates that the judicial inquiry opened by the anti-terrorist Prosecutor’s office of the Tribunal de grande instance of Paris in April 2001 and the supplementary charges brought in March and November 2007 constitute, in respect of the applicant, a decision meeting the definition in Article 1(4) of Common Position 2001/931. Thus, the Council makes that allegation without adducing any evidence in support of its contention.”
- Paragraph 64: “However, that explanation [relying on an inquiry about alleged members to list the organisation] is, firstly, inconsistent with the literal wording of Article 1(4) of Common Position 2001/931, which provides that a decision must have been taken ‘in respect of the persons, groups and entities concerned’”.
- Paragraph 65: “Second, even assuming that one should not follow a literal interpretation of that provision, it would still be necessary, for the Council’s argument to succeed, that that institution or the competent national authority concerned should provide an explanation as to the actual and specific reasons why, in the circumstances of the case, the acts ascribed to individuals allegedly members or supporters of the PMOI should be imputed to the PMOI itself. As already noted above, such an explanation is completely missing in the present case.”
- Paragraph 67: “As regards the supplementary charges brought on 19 March and13 November 2007, the applicant also contends that they do not concern it in any way and that they do not even contain any reference to it. In its first answer to the Court order of26 September 2006, the Council admits that it has not been informed of the specific identity of the persons under investigation and that it knows only that these persons are alleged members of the applicant. Here again, neither the connection between the persons in question and the applicant nor the reasons which might justify imputing to the latter the deeds of the former are explained in any way.”
Violating PMOI right of defence and effective judicial protection
The Court also concluded that the PMOI right of defence and judicial protection had been seriously violated. According to the Court, this alone, would suffice for annulling the decision.
- Paragraph 37: “As regards the rights of the defence, it is therefore clear that the contested decision was adopted in disregard of the principles stated by the Court in the OMPI judgment (see, in particular, paragraphs 120, 126 and 131).”
- Paragraph 39: “The Court finds that the Council’s arguments totally fail to substantiate its claim that it was impossible for it to adopt the contested decision under a procedure that would have respected the applicant’s rights of the defence.”
- Paragraph 47: ”In short, the Court finds that the continued freezing of the applicant’s funds by the contested decision was the result of a procedure during which the applicant’s rights of the defence were not respected. That finding cannot but lead to the annulment of the contested decision, in so far as it concerns the applicant.”
Abuse of Power or procedure
In the context of legal verdicts, abuse of power is a topic seldom treated by the Court in detail. However, the degree of Council’s defiance of the Court’s previous judgments and the arbitrary nature of its decision to maintain the PMOI on the list, prompted the Court to express its concerns in this regard.
- Paragraph 44: ”Furthermore, the Court considers that the Council’s omission to comply in the present case with a procedure clearly defined in the OMPI judgment, made with full knowledge of the facts and without any reasonable justification, may be material to any consideration of the abuse or misuse of powers or procedures alleged in the fifth plea in law.”
Refusal to provide the Court with information
One of the most remarkable aspects of this case was the Council’s refusal to even provide the Court with parts of the information it claimed to have relied on in adopting its Decision. The French Ministry of Foreign and European Affairs claimed that the passage in question ‘contained information of a security nature with implications for national defence” whose circulation French Penal Code had restricted. All indications, however, suggest that the Council did not have any evidence but in a acted disingenuously by invoking the security issue to conceal the arbitrary nature of the Decision.
- Paragraph 72: “As regards the Council’s contention that it is bound by the French authorities’ claim for confidentiality, this does not explain why the production of the relevant information or material in the file to the Court would violate the principle of confidentiality, whereas their production to the members of the Council, and thus to the governments of the 26 other Member States, did not.”
- Paragraph 73: “In any case, the Court considers that the Council is not entitled to base its funds-freezing decision on information or material in the file communicated by aMemberState, if the saidMemberState is not willing to authorise its communication to the Community judicature whose task is to review the lawfulness of that decision.”
- The Council, in line with its obligation of six-monthly review must publish its new list without keeping the PMOI on it.
- Any attempt by any Member States to defy the Court’s judgment or to delay its implementation would further undermine the rule of law. All Member States bear huge responsibility in this respect.