Decision-Making in the Dark? – Autonomous EU Sanctions and National Classification

Abstract

In the past decade, the European Union (EU) has taken an active role in counter-terrorism. Amongst the EU’s counter-terrorist policies, sanctions (asset freezing) remain the cornerstone. The EU runs two different regimes of counter-terrorist sanctions: autonomous EU sanctions and EU sanctions implementing UN lists of terrorist suspects. The core problem under both regimes remains that the high level of secrecy makes fair procedures impossible. The effective sharing of information between the EU and its Member States is crucial to the quality of decisions under the autonomous EU sanctions procedure where the Council lists a person as a terrorist based on the decision of a competent national authority. The Council cannot simply take over a national decision that someone is a terrorist without independently assessing the situation. In this regard, national classification as confidential will not be enough to justify not sharing the relevant information with the judiciary. However, sharing confidential information with the EU Courts requires a legal framework under which this information can be protected. In an area as sensitive as counter-terrorism, closed material procedures should not be ruled out without further consideration.

Keywords: EU autonomous sanctions, classification, Court of Justice, access to information, counter-terrorism

JEL Classification: K33