Counter-Terrorism Law and Judicial Review: The Challenge for the Court of Justice of the European Union

Abstract

Any discussion of European Union counter-terrorism law poses challenges. There is a challenge for the conservative observer that sees the former economic community with power akin to that of a sovereign state. For the liberal observer, the substance of much EU counter-terrorism law is so far-removed from European ideals of respect for human rights and the rule of law as to be rather alarming. In the present context, a book exploring judicial review of counter-terrorism action, there are also challenges. In the first half of this paper the idea that the ECJ is an appropriate institution for review of counter-terrorism law is subject to challenge. The ECJ has been the subject of much praise for its judicial review of counter-terrorism law – but that praise often overlooks the Court’s limitations. In earlier work it was possible to speak of ‘the difficult position of the European judiciary’. In that work the analysis set out the problem the Court faces in striking an appropriate balance between rules of EU constitutional law on division of powers and the protection of human rights. In this chapter the analysis takes a further look at the Court’s work in light of its history and practices. A key question is whether the Court of Justice conducts review in a manner appropriate to counter-terrorism law. The substantive challenge for the Court of Justice in more recent cases has been to reconcile overlapping rules of counter-terrorism law with legal principles such as the rule of law. Thus, the second half of the paper turns to the Court’s emerging counter-terrorism jurisprudence. That jurisprudence, in particular the line of cases dealing with restrictive measures, now ranks amongst the most discussed judgments in its history. After its judgment in Kadi I the Court is seen as a bastion of the rule of law in the face of executive power that has a global reach. That judgment was undoubtedly a positive one for the rule of law but it left many questions without answers. These questions – on intensity of review, secret evidence, and due process – have since been the subject of litigation in Kadi II and other cases. The central aim of this paper is to challenge the complacency in much European legal debate that courts – and the Court of Justice in particular – can be relied upon to control executive power. The paper argues that although they are a necessary part of a system of constraint they are by no means sufficient by themselves.

Keywords: counter-terrorism, judicial review, European Union, Kadi, due process