Keywords
Summary

Keywords

European Union law – Principles – Rights of the defence – Fund-freezing decision taken against certain persons and entities suspected of terrorist activity – Duties of the Council – Notifying the person concerned of the incriminating evidence and the right to be heard – Implications – Failure to notify – Breach of the rights of the defence

(Art. 6(1) TEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(a)); Council Regulation No 2580/2001, Art. 2(3); Council Decision 2008/583)

Summary

In the case of an initial decision to freeze funds, the Council is not obliged to inform the person or entity concerned beforehand of the grounds on which that institution intends to rely in order to include that person or entity’s name in the list referred to in Article 2(3) of Regulation No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism. So that its effectiveness may not be jeopardised, such a measure must, of its very nature, be able to take advantage of a surprise effect and to apply immediately. In such a case, it is as a rule enough if the institution notifies the person or entity concerned of the grounds and affords it the right to be heard at the same time as, or immediately after, the decision is adopted.

In contrast, in the case of a subsequent decision to freeze funds by which the inclusion of the name of a person or entity already appearing in the list referred to in Article 2(3) of Regulation No 2580/2001 is maintained, that surprise effect is no longer necessary in order to ensure that the measure is effective, with the result that the adoption of such a decision must, in principle, be preceded by notification of the incriminating evidence and by allowing the person or entity concerned an opportunity of being heard.

In this regard, the element of protection afforded by the requirement of notification of incriminating evidence and the right to make representations before the adoption of a decision that sets in motion the application of restrictive measures is fundamental and essential to the rights of the defence. This is all the more the case because such measures have a considerable effect on the rights and freedoms of the persons and groups concerned. The purpose of the rule that the addressee of a decision affecting him adversely must be placed in a position to submit his observations before that decision is adopted is to enable the authority concerned effectively to take into account all relevant information. In order to ensure that the addressee is in fact protected, the object of that rule is, in particular, to enable him to correct an error or produce such information relating to his personal circumstances as will tell in favour of the decision’s being adopted or not, or of its having this content or that.

That right, fundamental to observance of the rights of defence during a procedure preceding the adoption of a restrictive measure, is moreover expressly affirmed in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, recognised by Article 6(1) TEU as having the same legal value as the Treaties. If an exception to that fundamental right has been allowed with regard to initial decisions to freeze funds, that is justified by the need to ensure that the freezing measures are effective and, in short, by overriding considerations to do with safety or the conduct of the international relations of the Union and of its Member States.

(see paras 61-62, 64-67)