EN Official Journal of the European Union CE 286/5

Wednesday 16 December 2009

Restrictive measures affecting the rights of individuals following the entry into force of the Lisbon Treaty

P7_TA(2009)0111

European Parliament resolution of 16 December 2009 on restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, in respect of Zimbabwe and in view of the situation in Somalia

2010/C 286 E/02

The European Parliament,

having regard to the Universal Declaration of Human Rights, to all United Nations human rights conventions and the optional protocols thereto, to the International Covenant on Civil and Political Rights and the two optional protocols thereto, to the UN Charter and specifically Articles 1 and 25 and, in Chapter VII, Articles 39 and 41 thereof,

having regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights) and the protocols thereto, and to the Charter of Fundamental Rights of the European Union (the Charter), in particular the Charter's Title VI, Justice, which entered into force on 1 December 2009,

having regard to the relevant provisions of the Treaty of Lisbon, which amends the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC), and in particular to Articles 75, 215 and 275 of the Treaty on the Functioning of the European Union (TFEU), and to the provisions on democratic principles enshrined in Title II of the TEU,

having regard to the previous relevant provisions of the TEU (Articles 3, 6, 11, 13, 19, 21, 29 and 39) and of the TEC (Articles 60, 133, 296, 297, 301 and 308),

having regard to relevant Council documents in the area (1),

having regard to Council Common Positions 2001/930/CFSP on combating terrorism (2) and 2001/931/CFSP on the application of specific measures to combat terrorism (3), both of 27 December 2001, and Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (4),

having regard to Council Common Position 2002/402/CFSP concerning restrictive measures against Usama bin Laden, members of the Al-Qaida organisation and the Taliban and other individuals, groups, undertakings and entities associated with them (5), and Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban (6), both of 27 May 2002, and to the relevant Commission proposal and Council text (7),

having regard to Common Position 2009/138/CFSP of 16 February 2009 concerning restrictive measures against Somalia (8), to the relevant Commission proposal (9) and to Common Position 2004/161/CFSP of 19 February 2004 renewing restrictive measures against Zimbabwe (10), as amended by Common Position 2008/632/CFSP of 31 July 2008 (11), and to the relevant Commission proposal (12),

having regard to its relevant resolutions in the field, and more particularly to its resolution of 4 September 2008 on the evaluation of EU sanctions as part of the EU’s actions and policies in the area of human rights (13),

having regard to the report of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe of 16 November 2007 entitled ‘United Nations Security Council and European Union blacklists’ and to the addendum to that report of 22 January 2008,

having regard to the relevant case-law of the Court of Justice of the European Communities and in particular its judgment of 3 September 2008 in Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat International Foundation v Council and Commission (14),

having regard to the opinion of the European Data Protection Supervisor (EDPS) of 28 July 2009 on the proposal for a Council Regulation amending Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban,

having regard to the letter of 12 November 2009 from the Chair of its Committee on Development to the Chair of its Committee on Civil Liberties, Justice and Home Affairs,

having regard to the questions of 16 November 2009 to the Commission and to the Council on restrictive measures (O-0135/2009 – B7-0233/2009, O-0136/2009 – B7-0234/2009),

having regard to the views expressed by its Committee on Legal Affairs at its meeting on 3 December 2009 on the legal bases for the proposals concerning the texts on Usama bin Laden, the Al-Qaida network and the Taliban, Somalia and Zimbabwe under the Treaty of Lisbon,

having regard to Rules 115(5) and 110(2) of its Rules of Procedure,

A. whereas respect for human rights is one of the founding values of the Union (Article 2 TEU) which is also reflected in its external action, Article 21(1) TEU stipulating that its ‘action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity and respect for the principles of the United Nations Charter and international law’,

B. whereas the Union is committed to the fight against terrorism in all its dimensions – whether its origin lies, or its activities occur, inside or beyond EU borders – while acting, through different instruments and means within the clear limits defined by the rule of law and respect for fundamental rights; whereas extreme care must be taken to ensure that in this particular field fundamental rights are fully respected and that all the measures adopted with a view to the fight against terrorism are proportionate, appropriate and effective,

C. whereas the means by which the Union aims to achieve the objectives highlighted above, among them the fight against terrorism, include (but are not limited to) restrictive measures (sanctions) against the governments of third States, natural or legal persons, groups or non-State entities; whereas questions are still being asked as to what extent the UN and the EU have produced sufficient evidence of the success of these regimes in restricting the financing of acts of terrorism, bearing in mind the significant impact which these regimes have had on the credibility of the EU's and UN’s commitment to fundamental rights,

D. whereas, in line with general EU practice, no distinction is being made here between the terms ‘sanctions’ and ‘restrictive measures’ (15); whereas the Council has pointed out that sanctions should be targeted in such a way as to have maximum impact on those whose behaviour they are intended to influence; in doing so, accurate targeting should reduce to the absolute minimum any adverse humanitarian effects, the risk of unintended consequences for persons not targeted or possible adverse effects on neighbouring countries,

E. whereas Article 215(2) TFEU provides that ‘where a decision adopted in accordance with Chapter 2 of Title V of the Treaty on European Union so provides, the Council may adopt restrictive measures under the procedure referred to in paragraph 1 against natural or legal persons and groups or non-State entities’; and whereas Article 75, first paragraph, TFEU provides that ‘where necessary to achieve the objectives set out in Article 67, as regards preventing and combating terrorism and related activities, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall define a framework for administrative measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-State entities’,

F. whereas Article 275, second subparagraph, TFEU also prescribes that ‘the Court shall have jurisdiction […] to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 of this Treaty, reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union’,

G. whereas Article 16(2) TFEU calls on Parliament and the Council to establish a clear and stable framework for data protection with rules ‘relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data’; whereas the same Article states that ‘compliance with these rules shall be subject to the control of independent authorities’; whereas the implication is that the above-mentioned rules would apply also to the processing of personal data by the Union institutions in the area of the common foreign and security policy; whereas Article 39 TEU (in Chapter 2 which is entitled ‘Specific provisions on the common foreign and security policy’) must be read as a derogation from Article 16 TFEU which requires that the ‘Council shall adopt a decision laying down the rules relating to the protection of individuals with regard to the processing of personal data by the Member States when carrying out activities which fall within the scope of this Chapter, and the rules relating to the free movement of such data’; whereas, in the same way as Article 16(2) TFEU, it prescribes that ‘compliance with these rules shall be subject to the control of independent authorities’,

H. whereas in the above-mentioned Case Kadi and Al Barakaat International Foundation v Council and Commission, the Court of Justice annulled Regulation (EC) No 881/2002, in so far as it concerned Mr Yassin Abdullah Kadi and Al Barakaat International Foundation, and considered that the Community authority deciding to freeze the funds and economic resources of an individual or entity in accordance with Regulation (EC) No 881/2002 must communicate the grounds on which that decision is based to the individual or entity concerned, in order to observe the rights of defence, in particular the right to be heard and the right to judicial review, and that, given that those persons or entities were not informed of the evidence adduced against them, they had also been unable to defend their rights with regard to that evidence in satisfactory conditions before the Community judicature,

I. whereas the case-law of the Court of First Instance of the European Communities emphasises that judicial review is all the more imperative because it constitutes the only procedural safeguard ensuring that a fair balance is struck between the need to fight international terrorism and the protection of fundamental rights (16); whereas earlier rulings of the Court of First Instance (Joined Cases T-110/03, T-150/03 and T-405/03 Sison v. Council (17) upheld three successive Council decisions to deny lawyers for Jose Maria Sison access to the documents underlying the Council’s decision to include him on the list of persons subject to specific restrictive measures under Article 2(3) of Regulation (EC) No 2580/2001,

J. whereas studies have pointed out that in national systems, the freezing of assets is an interim measure taken pending a judicial determination of a person’s involvement in criminality, whereas it must be observed that at UN and EU level, these sanctions are not to be considered interim measures pending a judicial determination, but de facto alternatives to judicial determinations (18),

K. whereas UN Security Council Resolution S/RES/1822 (2008) has brought some improvements, namely: the requirement that the statements of reasons concerning the grounds for listing a person be published on the Sanctions Committee website; the obligation of Member States to take, in accordance with their domestic laws and practices, all possible measures to notify or inform in a timely manner the listed individual or entity of the designation and to include with that notification a copy of the publicly releasable portion of the case statement and other relevant information; the creation of a ‘focal point’ to which blacklisted people can direct complaints (19); a complete review of all the names on the Consolidated List,

L. whereas there is still no international legal mechanism for checking/reviewing the accuracy of the information forming the basis of a UN Sanctions Committee blacklisting, or the necessity for, and proportionality of, the measures adopted; whereas the individual still has no right of access to a court or a quasi-judicial body at UN level (20),

Need for a coherent and clear approach and proper involvement of Parliament

1. Considers that it is important to reflect on a general framework for all targeted sanctions implemented by the EU against natural or legal persons, entities or bodies, which ensures respect for the fundamental rights of those targeted;

2. Takes the view that, in the specific area of anti-terrorism sanctions, the distinction between ‘external’ and ‘internal’ threats is difficult to justify in practice, especially when such sanctions could also infringe the rights of EU citizens and residents under the Charter (21); considers that a legal framework should be established under Article 75 TFEU for measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-State entities, including (as pointed out also by its Committee on Legal Affairs) for restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban; such an approach would allow a proper level of democratic accountability through the intervention of Parliament by means of the codecision procedure (ordinary legislative procedure); due account should also be taken of the proper involvement of national parliaments;

3. Considers that with regard to future measures – such as restrictive measures in respect of Zimbabwe and certain specific restrictive measures directed against certain natural and legal persons, entities and bodies in view of the situation in Somalia, taken under Article 215(2) TFEU – the possibility of an optional consultation of Parliament should be taken into account (in accordance with the European Council ‘Solemn Declaration on European Union’, made at Stuttgart on 19 June 1983, providing for the optional consultation of Parliament on international matters even where the Treaties were silent); such an approach could be considered in keeping with the spirit of the Treaty of Lisbon and in line with Parliament's previous (consultative) role in this area;

4. Reiterates its request for a thorough evaluation of the implementation, on an annual basis, of the provisions prescribing restrictive measures and of their effectiveness, together with proper and timely transmission of information to Parliament in such matters; considers that, to this end, sanctions should always be accompanied by clear benchmarks;

5. Calls on the Commission to establish a network of independent experts tasked with proposing to the Council the most pertinent restrictive measures in a given situation, reporting regularly on changes in the situation in the light of the reference criteria and the aims being pursued and, where appropriate, suggesting how to implement sanctions more effectively; considers that the establishment of such a network would make for greater transparency, improve the quality of debate about sanctions generally and strengthen the application and continuous monitoring of sanctions in specific cases;

6. Points out that the activities of non-governmental organisations (NGOs) contribute substantially to development, democracy and human rights and that it could be useful to consult them on EU counter-terrorism policies in order to obtain valuable information on the situation in the field; further points out that repressive counter-terrorism measures, should not be an obstacle to their objectives in the areas of development, democracy and human rights;

7. Emphasises that the following comments refer, inter alia, to the substance of the proposals put forward by the Commission under the former legal framework, which are now obsolete, having also in view the legal framework established by the Treaty of Lisbon; points out that any reference to Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (22) should be considered obsolete;

On restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban

8. Points out that, in order to fulfil its commitment to combating terrorism while respecting human rights, it has considered the freezing of the funds and economic resources of certain persons, groups and entities an appropriate instrument to that end; emphasises that the implementation of such measures must be accompanied at all times by strong and adequate safeguards and guarantees, taking into account the extremely severe consequences of ‘blacklisting’ for the individuals or organisations concerned; points out that, in relation to restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, Article 75 TFEU applies;

9. Points to the need for in-depth reflection on the significant criminal law effects of anti-terrorist sanctions and for the adoption at national level of adequate remedies in respect of such blacklisting;

10. Recalls that listing and de-listing procedures for the UN and EU sanctions regimes have been strongly criticised as failing to provide satisfactory protection for fundamental rights (both procedural and substantive) and legal certainty; welcomes, therefore, the recent initiatives taken at EU level to remedy the above-mentioned shortcomings; regrets, however, that the Council in particular has shown limited ambition with regard to ensuring that the revised Regulation (EC) No 881/2002 respects the fundamental rights of the persons and entities concerned;

11. Queries, in relation to the ‘statement of reasons’ to be provided, whether either the Commission proposal or the Council text complies with the requirements of the judgment in the above-mentioned Case Kadi and Al Barakaat International Foundation v Council and Commission, which referred to the obligation to communicate the grounds on which, in such cases, the name of a person or entity is included in the list, taking into particular account the right of persons and entities concerned to be informed of the evidence against them;

12. Emphasises that evidence in some cases is based primarily on information provided by intelligence services, which may be operating under specific national rules; reiterates its 2008 position that executive privilege should not prevent the full exercise of the right to a judge or lead to impunity in the case of breaches of international law; calls, in this regard, on national parliaments to exercise full oversight over their governments’ activities and urges the full and swift implementation of a European legal framework founded on Article 15 TFEU; reaffirms the need to associate Parliament with the work of the already established Conference of Oversight Committees of the Intelligence Bodies of the Member States;

13. Calls for a full and timely assessment of the effectiveness of the EU and UN ‘terrorist’ sanctions regimes; furthermore, notes with concern that ‘terrorist’ sanctions appear to have had an adverse effect on conflict resolution and development efforts in numerous regions and urges that this factor be taken into account when evaluating the regimes;

14. Considers that improvements in UN listing and de-listing practices should be pursued as a matter of urgency and that Member States should also work towards improving their internal targeted sanctioning (implementation) procedures, as suggested in the above-mentioned report and addendum by the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe;

On certain restrictive measures in respect of Zimbabwe and on certain specific restrictive measures directed against certain natural and legal persons, entities and bodies in view of the situation in Somalia

15. Considers that the intention of the Council's Common Position 2008/632/CFSP and of the subsequent proposal (draft regulation) – extending the restrictive measures to individuals and entities responsible for human rights violations in Zimbabwe beyond the government – is to be welcomed, as is the alignment of legislation with recent decisions of the Court of Justice regarding the fundamental right to due process enjoyed by individuals and entities who are targeted by restrictive measures;

16. Is of the opinion that careful monitoring must be conducted in order to assess whether the grounds on which the restrictive measures were adopted persist, and to explore how restrictive measures can be combined with credible incentives to promote democracy and human rights in Zimbabwe;

17. Welcomes and supports provisions to ensure that the EU complies with its international commitments to implement immediately targeted sanctions adopted by the UN against individuals and entities found to have been engaging in or providing support for acts that threaten the peace, security or stability of Somalia, having acted in violation of the arms embargo or having obstructed the delivery of humanitarian assistance;

18. Queries, however, as highlighted above, the adequacy of the texts proposed by the Commission concerning information to be provided to listed persons – about the grounds on which names of persons or entities are included in a list and about their legal rights – in the light of the above-mentioned Case Kadi and Al Barakaat International Foundation v Council and Commission;

19. Points out that, as underlined by its Committee on Legal Affairs, Article 215 TFEU would apply to the measures in question, but that a series of conditions should be fulfilled: measures must, for example, be based on a proposal from the Vice-President of the Commission/High Representative of the Union for Foreign Affairs and Security Policy and the Commission must include the necessary provisions for legal safeguards;

20. Takes the view that Article 291 TFEU should be taken into account in order to adopt implementing measures when Article 215 TFEU is used as the legal basis for future proposals;

On data protection aspects

21. Welcomes the new provisions in the Commission’s proposal on the Al-Qaida text but draws attention to the comments of the EDPS regarding the protection of personal data, with particular reference to clarification of the exemptions from data protection principles that may be necessary and the right of access to classified information; underlines the fact that these reservations on the part of the EDPS could apply mutatis mutandis to all three Commission proposals; regrets that the Council text deletes the clear reference in Article 7e(5) to data subjects’ rights pursuant to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (23), which is mentioned only in Article 7d(1);

22. Observes that possible transfers of data to third countries and international organisations should comply with Article 9 of Regulation (EC) No 45/2001, with a view to ensuring adequate protection of the data in question; the proposal may need to include stipulations in this regard and arrangements with the UN may also be necessary; notes that the proposal does not affect the liability which may arise in the event of unlawful processing and publication of personal data;

23. Underlines the fact that notification of the persons and entities concerned, as called for by the Court of Justice, should be as comprehensive as possible and that the information provided on listed natural persons in given annexes should be clarified (24);

24. Notes that independent data protection authorities may play an important role in checking the lawfulness of personal data processing in terrorist blacklists, and can thus perform a quasi-judicial role that could effectively complement the review carried out by judicial authorities (25);

25. Considers it to be of the utmost importance that a general framework on data protection, as provided for in Article 16 TFEU, is adopted as soon as possible and that specific provisions as required by Article 39 TEU are also adopted;

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26. Instructs its President to forward this resolution to the Council, the Commission, the governments and parliaments of the Member States and the Secretaries-General of the United Nations and the Council of Europe.

(1) Foreign Relations Counsellors Working Party note of 22 January 2004 entitled ‘Monitoring and evaluation of restrictive measures (sanctions) in the framework of CFSP – Establishment of a “Sanctions” formation of the Foreign Relations Counsellors Working Party (RELEX/Sanctions)’ (05603/2004); Secretariat note of 7 June 2004 entitled ‘Basic Principles on the Use of Restrictive Measures (Sanctions)’ (10198/1/2004); Secretariat note of 2 December 2005 entitled ‘Guidelines on implementation and evaluation of restrictive measures (sanctions) in the framework of the EU Common Foreign and Security Policy’ (15114/2005); Secretariat note of 9 July 2007 entitled ‘Restrictive measures/ – EU Best Practices for the effective implementation of restrictive measures’ (11679/2007) and Foreign Relations Counsellors Working Party note of 24 April 2008 entitled ‘Restrictive measures (Sanctions) – Update of the “EU Best Practices”’ (08666/1/2008).

(2) OJ L 344, 28.12.2001, p. 90.

(3) OJ L 344, 28.12.2001, p. 93.

(4) OJ L 344, 28.12.2001, p. 70.

(5) OJ L 139, 29.5.2002, p. 4.

(6) OJ L 139, 29.5.2002, p. 9.

(7) COM(2009)0187 and Council Document 12883/2009.

(8) OJ L 46, 17.2.2009, p. 73.

(9) COM(2009)0393.

(10) OJ L 50, 20.2.2004, p. 66.

(11) OJ L 205, 1.8.2008, p. 53.

(12) COM(2009)0395.

(13) OJ C 295 E, 4.12.2009, p. 49.

(14) [2008] ECR I-6351.

(15) The types of restrictive measures vary and include arms embargoes, trade sanctions, financial/economic sanctions, freezing of assets, flight bans, restriction on admission, diplomatic sanctions, boycotts of sports and cultural events, and suspension of cooperation with a third country.

(16) Case T-228/02, Organisation des Modjahedines du peuple d'Iran v Council [2006] ECR II-4665, paragraph 155.

(17) [2005] ECR II-1429.

(18) I. Cameron, ‘Respecting Human Rights and Fundamental Freedoms and EU/UN Sanctions: State of Play’, October 2008, study, Policy Department External Policies, Directorate General External Policies of the Union, p. 21.

(19) Simply a ‘clearing house’ for complaints.

(20) Ibid Cameron, p. 37.

(21) Ibid Cameron, p. 16-17.

(22) OJ L 184, 17.7.1999, p. 23.

(23) OJ L 8, 12.1.2001, p. 1.

(24) Texts could, for example, include a stipulation that ‘Annex […] shall include only the information necessary for the purpose of verification of the identity of the listed natural persons and in any case no more than the information provided in points a) to […]’.

(25) See H. Hijmans and A. Scirocco, ‘Shortcomings in EU Data Protection in the Third and Second Pillars. Can the Lisbon Treaty be expected to help?’, Common Market Law Review 2009, p. 1512.