The Relation of Procedural Rights of Persons Connected with Terrorism in Sanctioning Procedures and Classified Data Gathered by the EU Member States

Abstract

The paper deals with the necessity of protecting procedural rights of persons or
entities connected with terrorism in the course of international sanctions and
legal sanctioning on one hand, and the requirement of protecting classified data
of the EU member states on the other. When considering the rights of the defendant,
one of the biggest issues is the lack of data stemming from the reluctance
of the member states to share information from their jurisdiction with either the
sanctioned persons or the Court of the European Union. It has arisen from the
effort of the member states to protect their classified data, some of which are seen
as particularly sensitive from the national security aspect, by their national legal
regulations. The most serious issue is distrust of the member states in the Court
of the EU, i.e. their doubt whether the EU justice system will be able to protect
classified data appropriately. The Court of the European Union has tried to resolve
these two conflicting tendencies, thus indirectly widening its jurisdictions to
the areas previously reserved for the member states. It has regulated the handling
of classified national security data in its practice and its internal regulations,
for example in the Rules of Procedure of the General Court of the European
Union. In fact, the Court has conditioned the implementation of sanctions on
the delivery of such data both to the Court and, although not in all instances, to
the persons or entities whom the particular sanctions refer to. The problem could
be solved by delivering an unclassified summary of the relevant data in order to
provide an explanation as to why the competent body of a member state believes
that a person or an entity should be covered with sanctions. Such a summary
could be delivered to the Council of the EU, and if necessary, to the Court of
the EU and the person or entity contesting the sanctions. Considering the principle
of loyal cooperation stipulated in Article 4, Paragraph 3 of the TEU, this
should suffice to the Court of the EU.