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Risk Regulation Approach to EU Policy against Terrorism in the light of the ECJ / CFI jurisprudence

Published online by Cambridge University Press:  06 March 2019


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In order to get a better understanding of the current relationship between liberty and security in the European Union (EU), the essay adopts a new approach to counterterrorism matters, namely by availing itself of Administrative Law, and focuses on a specific case study, the European Community's (EC) regulations on freezing the assets of the terrorists as well as those of the people and entities associated with the terror network and blacklisting the identified subjects.

Copyright © 2009 by German Law Journal GbR 


1 See Bruce Ackerman, The emergency constitution, 113 Yale Law Journal 1029, 1031 (2004); Id., Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism 44 (2006).Google Scholar

2 Lyon, See David, Surveillance after September 11 (2003), Italian translation: Massima sicurezza. Sorveglianza e guerra al terrorismo 170 (2005). In particular, the Author observes that the more power is connected to personal data, the more surveillance becomes a political matter.Google Scholar

3 See Jurgen Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy (1996), Italian translation: Fatti e norme. Contributi a una teoria discorsiva del diritto e della democrazia 516 (1996).Google Scholar

4 To this end, both those administrative sectors have developed practices of data-sharing, which allow each to strengthen the cognitive resources, cross-checking data gathered by the different agencies appointed for varied administrative functions. It seems a great contribution to the increase of the public information patrimony's potentiality, because this way the public administration's structural fragmentation has been overcome, enhancing the public capability to exert control and, as a consequence, national security. However, the mentioned data-sharing practices hide inner risks, which stem from the difficulty of selecting and interpreting relevant data, and even of communicating them at the right moment, so as not to prejudice the prospective added value of confidentiality. Indeed, from a legal point of view, resorting to those practices, in the absence of an expressed legal provision or of an executive order, affects the protection of fundamental rights. In this perspective, see Hans De Bruijn, One fight, one team: the 9/11 Commission Report on intelligence, fragmentation and information, 84 Public Administration 267, 273276 (2006). A clear example comes from the US Presidency Executive Order No. 13356, 69 Fed. Reg. 53599, 53600-01 (1 September 2004), aimed at favouring the exchange of terrorism-related information among executive agencies, which only later was received in the Intelligence Reform and Terrorism Prevention Act 2004, the statute attempting to put into practice the recommendations of the 9/11 Commission, charged with the task of examining the American national security problem after the attacks of 2001. See the National Commission on Terrorist Attacks Upon the United States, Final Report 408 (2004). In particular, the Commission underlined the importance of carrying out “integrated, all-source analysis”, in order to face the terrorist issue, stating that “without it, it is not possible to ‘connect the dots”'. In this regard, see Daniel J. Solove, Marc Rotenberg, Paul M. Schwartz, Information Privacy Law 317–318 (2001).Google Scholar

5 David Dyzenhaus, The Permanence of the Temporary: Can Emergency Powers Be Normalized?, in The Security of Freedom: Essays on Canada's Anti-Terrorism Bill, 21 (R.J. Daniels, P. Macklem & K. Roach eds., 2001).Google Scholar

6 See Douglass Cassel, International Human Rights and the United States Response to 11 September, in Legal Instruments in the Fight Against International Terrorism, 251, 293295 (C. Fijnant, J. Wouters and F. Naert eds., 2004).Google Scholar

7 This condition has been called “daily endemic emergency” by MarioPilade Chiti, Il rischio sanitario e l'evoluzione dall'amministrazione dell'emergenza all'amministrazione precauzionale, in Annuario 2005. Il diritto amministrativo dell'emergenza, 141, 142 (Associazione italiana dei professori di diritto amministrativo ed., 2005).Google Scholar

8 Ulrich Beck, Risk Society. Towards a New Modernity (1992), Italian translation, La società del rischio. Verso una seconda modernità 103, 105 (2000).Google Scholar

9 Sofsky, See Wolfgang, Rischio e sicurezza 155–157 (2005). According to the Author, the prevention's policies put the future security before the risk of the loss in liberty.Google Scholar

10 The system of lists has been introduced in the UN Resolution 1333/2000. For an account of the listing process, see Clemens A. Feinäugle, The UN Security Council Al-Qaeda and Taliban Sanctions Committee: Emerging Principles of International Institutional Law for the Protection of Individuals?, 9 German Law Journal 1513 (2008).Google Scholar

11 The Sanctions Committee was created in the UN Resolution 1267/1999, para. 6. In literature, see Andrea Bianchi, Assessing the Effectiveness of the UN Security Council's Antiterrorist Measures: the Quest for Legitimacy and Cohesion, 17 European Journal of International Law 881, 883, 900902 (2007); Jeremy M. Farrall, The United Nations Sanctions and the Rule of Law (2007).Google Scholar

12 It is noteworthy that the UN Resolution 1526/2004 provides for the applicant State's obligation to make a statement on the case, in which the reasons of the request must be specified.Google Scholar

13 On the Focal Point, see Daniel Halberstam and Eric Stein, The United Nations, the European Union, and the King of Sweden: Economic Sanctions and Individual Rights on a Plural World Order, 46 Common Market Law Review 13 (2009); Johannes Reich, Due Process and Sanctions Targeted Against Individuals Pursuant to Resolution 1267 (1999) with an added note on European Court of Justice, Judgment in Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission, September 3, 2008, 33 Yale Journal of. International Law, electronic copy available at, 4–5 (2008).Google Scholar

14 See Halberstam and Stein, (note 13), 16.Google Scholar

15 Italian Supreme Court of Cassazione, sez. I, criminal, 17 January 2007, n. 1072. On the probational relevance of freezing lists the Corte di Cassazione has already pronounced in the case sez. I, criminal, 30 September 2005, n. 35427.Google Scholar

16 Art. 25 UN Charter. Furthermore, in accordance with art. 48 (2) of the UN Charter, those “decisions shall be carried out by the Members of the United Nations directly and through their action in appropriate international agencies of which they are members”.Google Scholar

17 See respectively art. 307 and art. 297 EC Treaty.Google Scholar

18 On this issue see Maria Tzanou, Case-note on Joined Cases C-402/05 P &C-415/05 P Yassin Abdullah Kadi & Al Barakaat International Foundation v. Council of the European Union & Commission of the European Communities, 10 German Law Journal 123, 137148 (2009); for a further analysis of the Kadi case see Marise Cremona's speech, European Law and International Law after Kadi, given at the University of Bristol, 3 November 2008.Google Scholar

19 In this perspective, the courts gave a different interpretation of the relationship between EC law and International law, the CFI adopting a monistic approach, which considers the former a part of the latter, and the ECJ opposing a dualistic vision, which holds the EC domestic law as a distinct legal sphere from the international dimension. See Gráinne de Burca, The European Court of justice and the International Legal Order after Kadi, Jean Monnet Working Paper, 01/09, 2, 28, 34, available at:,; Andrea Gattini, Joined Cases C-402/05 P & 415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. European Council, judgment of the Grand Chamber of 3 September 2008, nyr, 46 Common Market Law Review 213, 230231 (2009); Stefan Griller, International Law, Human Rights and the European Community's Autonomous Legal Order: Notes on the European Court of Justice Decision in Kadi, 4 European Constitutional Law Review 528, 549–552 (2008); Nikolaos Lavranos, Decisions of International Organizations in the European and Domestic Legal Orders of Selected EU Member States (2004). On the contrary, such clear-cut and general definition of the relation between legal orders is considered useless by Tzanou, who prefers to reserve “the ECJ's euro-centric approach” to the analysis of the protection of fundamental rights. See Tzanou (note 18), 147–148, 151. For a further frame on the relationship between European Law and International Law, see Bj⊘rn Kunoy and Anthony Dawes, Plate Tectonics in Luxemburg: the Ménage à Trois between EC Law, International Law and the European Convention of Human Rights Following the UN Sanctions Cases, 46 Common Market Law Review 73, 83–100 (2009).Google Scholar

20 In particular, the CFI founded such subordination to the UN obligations referring (paras. 192–200) to the analogy with the Joined Cases C 21–24/72, International Fruit Company, [1972] ECR 1219, where the ECJ held that the GATT agreement was binding on the EEC. However, EC is not a member of the UN and this circumstance alters the same validity of the functional succession's paradigm. In this regard, see Mehrdad Payandeh and Heiko Sauer, European Union: UN sanctions and EU fundamental rights, 7 International Journal of Constitutional Law 306, 311 (2009); Halberstam and Stein (note 13), 4546. On those premises the CFI decided in Case T-306/01, Ahmed Ali Yusuf e Al Barakaat International Foundation v. Council of European Union and European Commission, [2005] ECR II-3533, and Case T-315/01, Yassin Abdullah Kadi v. Council of European Union and European Commission, [2005] ECR II-3649. The same conclusions were worked out in the CFI, Joint Cases T-253/02 and 49/04, Chafiq Ayadi, Hassan v. Council of European Union, [2006] ECR II-2139, [2006] ECR II-52, Summ. pub. See Joni Heliskoski, Case T-253/02, Chafiq Ayadi v. Council, judgment of the Court of First Instance of 12 July 2006; Case T-49/04, Faraj Hassan v. Council and Commission, judgment of the Court of First Instance of 12 July 2006, nyr, 44 Common Market Law Review 1143 (2007).Google Scholar

21 See ECJ, Case 294/83, Les Verts v Parliament [1986] ECR 1339, para. 23. It is worth noting that this milestone of the EC case-law was highlighted by Eeckout, in order to move a “critique from the perspective of Community law” to the CFI's judgment in the Kadi case. See Piet Eeckout, Community Terrorism Listings, Fundamental Rights, and UN Security Council Resolutions. In Search of the Right Fit, 3 European Constitutional Law Review 183, 198 (2007).Google Scholar

22 Mustafa T. Karayigit, The Yusuf and Kadi Judgments: The Scope of EC Competences in Respect of Restrictive Measures, 33 Legal Issues of Economic Integration 379, 397 (2006); Takis Tridimas and Jose A. Gutierrez-Fons, EU law, international law and economic sanctions against terrorism: the judiciary in distress, 32 Fordham International Law Journal 660, 681 (2009); Pasquale De Sena and Maria Chiara Vitucci, The European Courts and the Security Council: Between Déboublement Fonctionnel and Balancing of Values, 20 European Journal of International Law 193, 201202, 210 (2009).Google Scholar

23 See Maria Eugenia Bartoloni, Frammentazione di competenze e tutela giurisdizionale, in Sicurezza collettiva e diritti fondamentali in tempo di terrorismo 31, 4748 (S. Lorenzon, G. Vaccari and V. Zanetti eds, 2008).Google Scholar

24 In this sense see Christina Eckes, Judicial Review of European Anti-Terrorism Measures – The Yusuf and Kadi Judgments of the Court of First Instance, 14 European Law Journal 74, 89–90 (2008). More precisely, the Author considers that if EU law is classified as international law, the UN resolution at stake ought to be in compliance with EU Law, and so with the ECHR and the general principles of EC Law; on the contrary, if EU law is domestic law, the international law shall prevail, but in so doing the Court has to apply not only the UN Law, but also the international human rights law, including the ECHR. For a further critique to the denial of protection of the fundamental human rights, see Piet Eeckout, Does Europe's Constitution Stop at the Water's Edge? Law and Policy in the EU's External Relations, Fifth Walter Van Gerven Lecture (2005); see also Eeckout (note 21), 190198.Google Scholar

25 CFI, Case T-306/01, Ahmed Ali Yusuf, paras. 277, 281 and 282. In the literature see Edoardo Chiti, La prevalenza del diritto delle Nazioni Unite su quello europeo, Giornale di diritto amministrativo 147, 151 (2006). See Tridimas and Gutierrez-Fons (note 22), 681 who consider that “the CFI sought to reach a golden balance” between the primacy of UN Charter and the subjection of the Security Council “to principles endogenous to the legal system at the apex of which it stands”, but such approach “is neither logically inevitable nor constitutionally secure”.Google Scholar

26 On the guarantees to an effective judicial protection see ECJ, Case 222/84, Johnston, [1986] ECR 1651; ECJ, Case C-97/91, Oleificio Borelli v Commission, [1992] ECR I-6313; ECJ, Case C-1/99, Kofisa Italia, [2001] ECR I-207; ECJ, Case C-424/99, Commission v Austria, [2001] ECR I-9285; ECJ, Case C-50/00 P, Unión de Pequeños Agricultores v Council, [2002] ECR I-6677.Google Scholar

27 See Christian Tomuschat, Case T-301/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council and Commission, judgment of the Court of First Instance of 21 September 2005; Case T-315/01, Yassin Abdullah Kadi v. Council and Commission, judgment of the Court of First Instance of 21 September 2005, nyr, 43 Common Market Law Review 537, 549 (2006). See also Eeckout (note 21), 198206.Google Scholar

28 In the Case C-459/03, MOX plant, [2006] ECR I-4635, the ECJ has already ruled that no international treaty can affect the autonomy of the EC legal order and the jurisdiction of the EC court over it. For an analysis of the case see N. Lavranos, The scope of the exclusive jurisdiction of the Court of Justice, 32European Law Review 83 (2007); Paul J. Cardwell and Duncan French, Who decides? The ECJ's Judgment on Jurisdiction in the MOX Plant Dispute, 19 Journal of Environmental Law 121 (2007); Federico Casolari, La sentenza MOX: la Corte di giustizia delle Comunità europee torna ad occuparsi dei rapporti tra ordinamento comunitario ed ordinamento internazionale, 12 Il diritto dell'Unione Europea 327 (2007).Google Scholar

29 Quoting Peter J. Spiro, Treaties, International Law, and Constitutional Rights, 55 Stanford Law Review 1999, 2002 (2000), see Tridimas and Gutierrez-Fons (note 25), 701, who underline “the constitutional hegemony of the EU” wrapped in the pronouncement of the ECJ (684) and consider the judgment “Euro-centric rather than internationalist”.Google Scholar

30 In particular, the Court's prohibition to derogate to the clause of protection of rights, settled in art. 6 EU Treaty, stems from the lack of any opposite indication in artt. 297 and 307 EC Treaty. Moreover, it finds the counter-limit premise in art. 300 (6) EC Treaty, according to which every new agreement requires favourable opinion of the same court, as it concerns the compatibility with the Treaty. See ECJ, Joint cases C-402/05 P e C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. European Council, [2008] nyr,, paras. 301–306. About the behaviour of the ECJ as a “domestic court”, see Halberstam and Stein (note 13), 47, 68.Google Scholar

31 In this perspective, it is worth mentioning the sharp analysis of M.T. Karayigit, who criticised the CFI judgment in the Yusuf and Kadi cases, because it fails to acknowledge the difference between the international and the Community legal order, “which is far from being as sub-system of or subordination to international law through the constitutionalisation process”, anticipating the core of the ECJ pronouncement on appeal. See Karayigit (note 22), 395. Furthermore, on the development of a counter-limit doctrine at EC level see Aldo Sandulli, La Corte di giustizia europea ed il dialogo competitivo tra le corti, in Il diritto amministrativo oltre i confini 189, 197200 (S. Battini et al. eds., 2008); Edoardo Chiti, I diritti di difesa e di proprietà nell'ordinamento europeo, Giornale di diritto amministrativo 1093, 1094–1095 (2008). More specifically, the Author finds in the position of the Court not only the result of the UN Law's translation on a regional scale, but also a source of a further development of global law.Google Scholar

32 See ECJ, Joint cases C-402/05 P e C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. European Council, para. 344. Before the annulment of the CFI judgment for error in law and of the Council Regulation (EC) No 881/2002, as far as it concerns Mr Kadi and the Al Barakaat International Foundation, the effects of the contested regulation are, by virtue of art. 231 EC Treaty, maintained for a brief period that may not exceed three months, in order to allow the Council to repair to the tort without prejudicing the effectiveness of the restrictive measures imposed by the regulation in a serious and irreversible manner (see paras. 373–376). See Tzanou (note 18), 152, 153.Google Scholar

33 In accordance with art. 1 Reg. 561/2003, art. 2a is added to the contested regulation and it provides, at (1), that “art. 2 shall not apply to funds or economic resources where: (a) any of the competent authorities of the Member States, as listed in Annex II, has determined, upon a request made by an interested natural or legal person, that these funds or economic resources are: (i) necessary to cover basic expenses, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges; (ii) intended exclusively for payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services; (iii) intended exclusively for payment of fees or service charges for the routine holding or maintenance of frozen funds or frozen economic resources; (iv) necessary for extraordinary expenses; and (b) such determination has been notified to the Sanctions Committee; and (c) (i) in the case of a determination under point (a)(i), (ii) or (iii), the Sanctions Committee has not objected to the determination within 48 hours of notification; or (ii) in the case of a determination under point (a)(iv), the Sanctions Committee has approved the determination”; see CFI, Case T-306/01, Yassin Abdullah Kadi v. Council of European Union, paras. 288–291.Google Scholar

34 See Tridimas and Gutierrez-Fons (note 22), 31, who highlight that in the CFI's reasoning the function of jus cogens is “to lower substantially the degree of judicial scrutiny”, comprising all the rights pleaded by the applicants, but allowing only a control on the arbitrariness of their restraint. Therefore, whether a review in point of jus cogens intervened, it would amount to a declaration of ultra vires action of the Security Council, which would break the presumptive immunity of UN Law. In this regard, see Eckes (note 24), 88. On the notion of jus cogens adopted by the CFI, see also Halberstam and Stein (note 13), 51–55; De Burca (note 19), 26; Griller (note 19), 543–549.Google Scholar

35 See CFI Case T-306/01, para. 248.Google Scholar

36 See ECJ Joined Cases C-402/05 P e C-415/05 P, paras. 355–356.Google Scholar

37 See Id., paras. 366–370.Google Scholar

38 European Council Common Positions 27 December 2001, 2001/930/CFSP, on combating of terrorism, 2001/931/CFSP, on the application of specific measures to combat terrorism. In particular, the distinction between the insertion in the list with an assets-freezing purpose and that finalised to the police and judicial cooperation is specified in the Annex to the Common Position 2001/931/CFSP.Google Scholar

39 Art. 1, (4) and (6), 2001/931/CFSP.Google Scholar

40 See CFI Case T-228/02, Organisation des Modjahedines du peuple d'Iran v. Council of European Union, [2006] ECR II-4665, where the right to a fair hearing has been reaffirmed “since the identification of the persons, groups and entities contemplated in Security Council Resolution 1373 (2001), and the adoption of the ensuing measure of freezing funds, involve the exercise of the Community's own powers, entailing a discretionary appreciation by the Community” (para. 107) and “the Community does not act under powers circumscribed by the will of the Union or that of its Member States” (para. 106). It happens on the assumption that, “although Security Council Resolution 1373 (2001) provides inter alia in Paragraph 1(c) that all States must freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts, of entities owned or controlled directly or indirectly by such persons, and of persons and entities acting on behalf of, or at the direction of, such persons and entities, it does not specify individually the persons, groups and entities who are to be the subjects of those measures. Nor did the Security Council establish specific legal rules concerning the procedure for freezing funds, or the safeguards or judicial remedies ensuring that the persons or entities affected by such a procedure would have a genuine opportunity to challenge the measures adopted by the States in respect of them” (para. 101). Later, the CFI carried through the same reasoning in Case T-47/03, Jose Maria Sison v. Council of European Union, [2007] ECR II-2047, paras. 139–154; Case T-327/03, Stichting Al-Aqsa v. Council of European Union, [2007] ECR II-79*,, paras. 53–65. For a detailed analysis of those cases, see N. Lavranos, Case-note: T-228/02 (Organisation des Modjahedines du peuple d'Iran), 8 European Human Rights Cases 269 (2007); Id., Case-note: T-47/03 and T-327/03 (Sison) and (Al-Aqsa), 8 European Human Rights Cases 991 (2007).Google Scholar

41 CFI Case T-256/07, People's Mojahedin Organization of Iran v. Council of European Union, [2008] nyr,, paras. 130–139; CFI Case T-284/08, People's Mojahedin Organization of Iran v. Council of European Union, [2008] nyr,, paras. 54–55. The last word on this saga is for the ECJ, which is about to pronounce on the pending case C-576/08.Google Scholar

42 The latest judgment which stated the necessity to provide adequate reasons for the inclusion in the EU freezing list is Case T-229/02, PKK v. Council of European Union, [2008], where the CFI did not uphold a disclosure after the instauration of the judicial proceeding, in order to make up for the previous failure to state reasons, being at that time the rights of the defence already prejudiced (see para. 68). However, Tridimas and Gutierrez-Fons (note 22), 57, highlight that the court seems to separate “the right to receive evidence from the right of access to documents”, distinguishing between the duty to disclosure and the principle of transparency, as the Case T-110/03, 150/03, 405/03, Jose Maria Sison v. Council of European Union [2005], upheld by the ECJ in the Case C-266/05 P [2007], demonstrates. In fact, the courts denied the applicant the right to know, in order to protect the confidentiality of the contested documents, without exempting the Council “from notifying the evidence” against him.Google Scholar

43 CFI Case T-256/07, para. 170.Google Scholar

44 Id., paras. 176–185.Google Scholar

45 CFI Case T-284/08, paras. 40–41.Google Scholar

46 Id., paras. 56–57.Google Scholar

47 Id., paras. 71–77.Google Scholar

48 ECJ Case C-354/04 P, Gestoras Pro Amnistía v. Council of European Union, [2007] ECR I-1579, paras. 52–54, and ECJ Case C-355/04 P, Segi Araitz Zubimendi Izaga and Aritza Galarraga v. Council of European Union, [2007] ECR I-1657, paras. 53–54.Google Scholar

49 See ECJ Case C-354/04 P, Id., para. 60; ECJ Case C-355/04 P, Id., para. 60.Google Scholar

50 Art. 41, (1) and (2), disposed that “every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union. 2. This right includes: a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; c) the obligation of the administration to give reasons for its decisions.” Even though the Charter is legally enforceable not yet, however it has been incorporated in the Treaty establishing a Constitution for Europe and, after the failure of that project, actually it is part of the Treaty of Lisbon.Google Scholar

51 CFI Joined Cases T-110/03, T-150/03 and T-405/03, Sison v. Council of European Union, [2005] ECR II-1429; ECJ, C-266/05 P, Sison v. Council of European Union, [2007] ECR I-1233.Google Scholar

52 In this perspective see de Burca (note 19), 38. In particular, the Author recognised that “the CFI demonstrated moderate jurisdictional deference, and the ECJ (and its Advocate General) demonstrated little or no deference”.Google Scholar

53 Opinion of Advocate General Poiares Maduro, in the case Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, 16 January 2008, para. 15. In the literature see Tridimas and Gutierrez-Fons (note 22), 669–670; Halberstam and Stein (note 13), 37–39.Google Scholar

54 See Tridimas and Gutierrez-Fons (note 22), 674–678. Moreover, according to Halberstam and Stein (note 13), 39, the ECJ's decision “was an exercise of statemanship”, aimed at “preserv[ing] some limits on Article 308 EC”, whilst defining a specific competence of the EC's market, emancipating it from the “effective assistance” to the CFSP.Google Scholar

55 ECJ Joined cases C-402/05 P e C-415/05 P, para. 202. In this perspective, see Tridimas and Gutierrez-Fons (note 22), 679, who realise that the discussion about the competence will be overcome by the entry into force of the Lisbon Treaty, because at art. 215 (2) it recognises the Council power to adopt restrictive measures against individuals, groups and non-state group on the basis of CFSP decisions.Google Scholar

56 The international terrorism issue is considered “the first truly ‘cross-pillar’ test of the Union's role as a security actor” by Monica den Boer and Jörg Monar, Keynote Article: 11 September and the Challenge of Global Terrorism to the EU as a Security Actor, 40 Journal of Common Market Studies 11 (2002). See also J. Monar, Anti-terrorism and policy: the case of the European Union, in Global Anti-Terrorism Law and Policy 425, 449452 (V.V. Ramraj, M. Hor and K. Roach eds., 2005).Google Scholar

57 Poiares Maduro (note 53), para. 34. On the contrary, the ECJ does not comment on this issue, but implicitly it dismisses it, holding that the court has the jurisdiction to review “all Community Acts” (see Joined Cases C-402/05 P e C-415/05 P, para. 326). In the literature, see Kunoy and Dawes (note 19), 101.Google Scholar

58 Poiares Maduro (note 53), para. 35.Google Scholar

59 Id., para. 35.Google Scholar

60 In this perspective see Giacinto della Cananea, Return to the due process of law: the European Union and the fight against terrorism, 32 European Law Review 895 (2007).Google Scholar

61 In this perspective see Ch Powell, The Legal Authority of the United Nation Security Council, in Security and Human Rights 157, 162163, 165 (B.J. Goold and L. Lazarus eds., 2007), who considers the Security Council an international administrative body, and its action an administrative action, as such constrained to the respect of the global administrative law principles and standards of review.Google Scholar

62 Jeffrey Jowell, The Two Faces of Proportionality, paper presented at the IALS seminar, Proportionality and the Standard of Review after Huang 3, 23 November 2007. See also David Dyzenhaus, Deference, Security and Human Rights, in Security and Human Rights 125, 146149 (B.J. Goold and L. Lazarus eds., 2007).Google Scholar

63 There is an extensive EC case-law on the proportionality principle, which has contributed to design its ambit of application (in particular, it has been developed in the following cases: ECJ Case C 8/55, Fédération Charbonnière, [1955] ECR 291; ECJ Joined Cases 5–11, 1315/62, Società acciaierie San Michele, [1962] ECR 859; ECJ Case C 18/63, Schmitz [1964] ECR 163; ECJ Case C 29/69, Stauder, [1969] ECR 419; ECJ Case C 11/70, Internationale Handelsgesellschaft, [1970] ECR 1125; ECJ Case C 5/73, Balkan-Import-Export, [1973] ECR 1091; ECJ Case C 182/84, Miro, [1985] ECR 3731). However, on the role played by proportionality in the protection of fundamental rights see ECJ Case C-112/00, Schmidberger, [2003] ECR I-5659; ECJ Case C-36/02, Omega, [2004] ECR I-9609; ECJ Case C 438/05, International Transport Workers’ Federation, Finnish Seamen's Union c. Viking Line ABP, Oü Viking Line Eesti, [2007] ECR I-10779; ECJ Case C-341/05, Laval un Partneri Ltd. c. Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avdelning 1, Byggettan, Svenska Elektrikerförbundet, [2007] ECR I-11767. As regard the doctrine, see Nicholas Emiliou, The Principle of Proportionality in European Law. A Comparative Study (1996).Google Scholar

64 See Jowell (note 62), 1–3.Google Scholar

65 Even on the precautionary principle, there is a broad EC case-law. See ECJ Case C-178/84, European Commission v. Federal Republic of Germany, [1987] ECR 1227; ECJ Case C-157/96, National Farmers Union, [1998] ECR I-2211, and ECJ, Case C-180/96, UK v. European Commission, [1998] ECR I-2211; ECJ Case C-6/99, Association Greenpeace France and oth‥, [2000] ECR I-1651. The assumption among the EC general principles goes back to the CFI Case T-74/00, Artegodan and oth. V. European Commission, [2002] ECR II-4945, and the following decision of the same court Case T-392/02, Solvay Pharmaceuticals v. European Council, [2003] ECR II-4555. Indeed, the CFI Case T-13/99, Pzifer Animal Health SA v. European Council, [2002] ECR II-3305, and Case T-70/99, Alpharma Inc. v. European Council, [2002] ECR II-3495 are very meaningful in the development of the application field and the feature of the principle. Furthermore, see CFI Case T-177/02, Malagutti-Vezinhet v. Commission, [2004] ECR II-827, and CFI Case T-229/04, Sweden v. European Commission, [2007] ECR II-2437. However, the origins of the application of the precautionary principle went back to ECJ Case C-174/82, Sandoz, [1983] ECR 2445, where some national healthcare measures were declared incompatible with the freedom of circulation of goods, according to art. 30 EC Treaty. That case developed a principle expressed by the same court in the previous Case C-272/80, Frans-nederlandse maatschappij voor biologiche producten, [1981] ECR 3277. Moreover, see Communication from the Commission on the precautionary principle, 2 February 2000, COM (2000)1 final.Google Scholar

81 See id. Š 4(1)(k)–(m) (relating to TEU provisions: Article 7(2) (serious and persistent breach determination by European Council); Article 14(2) (European Parliament composition); Article 15(4) (European Council consensus decisions); Article 17(5) (Commissioners); Article 19(2) (Judges and Advocates-General of the Court); Article 22(1) (EU strategic interests and objectives); Chapter 2 of Title V (CFS policy); Article 48(3), (4), (6) and (7) (treaty revision procedures); Article 49 (EU membership application); Article 50(3) (European Council decision extending treaties' application for withdrawing state)). TFEU provisions: Article 19(1) (measures against sexual, racial or ethnic, religious, age or sexual orientation discrimination); Article 21(3) (social security or social protection measures); Article 22(1) (non-national EU citizens standing and voting in state of residence local elections); Article 22(2) (same persons standing and voting in European Parliament elections in state of residence); Article 25 (strengthening EU citizens' rights); Article 77(3) (passports, identity cards, residence permits etc.); Article 82(2)(d) (minimum rules on criminal procedure); Article 83(1) (decision on other areas of crime); Article 86(1) and (4) (European Public Prosecutor's Office); Article 87(3) (police cooperation); Article 89 (cross-border operation by competent authorities); Article 113 (harmonization of indirect taxes); Article 115 (approximation of national laws affecting internal market); Article 121(2) (broad guidelines of economic policies); Article 126(14) (replacing protocol on excessive deficit procedure); Article 127(6) (conferral on European Central Bank prudential supervision tasks); Article 153(2)(b) (working conditions, social security etc.); Article 155(2) (agreements at EU level between management and labor); Article 192(2) (adoption of certain environmental measures); Article 194(3) (energy measures of a fiscal nature); Article 203 (association of countries and territories with the EU); Article 218(8) (certain international agreements); Art. 222(3) (implementation of solidarity clause having defense implications); Article 223(1) (uniform procedures for elections to European Parliament); Article 311 (own resources decisions); Article 312(2) (multi-annual financial framework); Article 332 (expenditure on enhanced cooperation to be borne by member states other than those participating); Article 333(1) and (2) (enhanced cooperation); Article 346(2) (changes to list of military products exempt from internal market provisions); Article 352(1) (measures to attain EU objectives where treaties do not provide necessary powers).Google Scholar

66 In this regard, a good example is provided by principle 15 of the Rio Declaration on Environment and Development, 3–14 June 1992, which states that “in order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”Google Scholar

67 This is the strong version of the principle, which is considered paralysing and focusing only on certain aspect of the regulatory situation by Cass R. Sunstein, Beyond the Precautionary Principle, 151 University of Pennsylvania Law Review 1003, 10291054 (2003).Google Scholar

68 A due reference is the judgment of the Bundesverfassungericht, 1 BvR 357/05, 15 February 2006, which declared unconstitutional the art. 14 (3) of Luftsicherheitsgesetz (LuftSiG) 11 January 2005, the Act on security of flights, inasmuch as it authorised the army to shoot down an hijacked airplane, should there be a reasonable certainty that that plane would be used as an improper weapon against national targets. The court deemed the right to life of passengers and the crew untouchable, and stopped any national preventive action on the threshold of the Constitutional State, governed by the rule of law. In this perspective, the court allowed precautionary interventions only in those cases in which hijackers were to be on the plane, in accordance with the proportionality principle. For an analysis of the judgment, see Vincenzo Baldini, Stato di prevenzione v/ Stato costituzionale di diritto: un nuovo capitolo di una storia infinita, Jus 463(2006).Google Scholar

69 See Jowell (note 62), 1–4.Google Scholar