Judgment of the Court of Justice (EU), Grand Chamber, 26 July 2017 in CaseC-79/15 P (ECLI:EU:C:2017:584) *

This is a judgment in appeal in which the Court of Justice set aside a judgment of the General Court of 17 December 2014 (Hamas v Council). The issue is that since 2001, Hamas has been included in a list of persons, groups and entities related to terrorism, drawn up by the Council of the EU, in the framework of its policy to combat terrorism.  In conformity with the instruments to implement this policy, assets and economic resources of these persons, groups and entities shall be frozen, while the provision of financial services for their benefit shall be prohibited. The decision of the Council to include a person, group or entity on this list should be based on a decision by a competent authority that the person, group or entity is involved in terrorism. In respect of Hamas, the Council referred to decisions made in 2001 by competent authorities in the UK and the USA.  Subsequently, there shall be a regular review (every six months) to ensure that there are still grounds to keep them on the list. In 2010, Hamas brought an action before the General Court against the acts of the Council to keep them on the list. The General Court annulled the acts of the Council in the Judgment of 17 December 2014 (T-400/10, EU:2014:1095). The judgment, here under consideration, is the outcome of the appeal of the Council, supported by the French Republic, against the judgment of the General Court.

The Court of Justice rejected the Council’s argument, which asserts the fact that the national decisions on which the Council initially based its inclusion of Hamas on the list of terrorist persons, groups and entities were still in force and therefore sufficient to keep Hamas on that list. The Court of Justice held that the relevant EU law requires an up-to-date assessment of the facts by the Council to ensure that there is an ongoing risk. However, the Court of Justice accepted another objection of the Council against the judgment of the General Court. The latter Court held in its judgment of 17 December 2014 that the Council could only keep Hamas on the list if it could base this continuation on a recent decision of the same competent national authority that qualified Hamas as a terrorist organization in 2001. According to the Court of Justice, this is not required by EU law. That is relevant as the Council in the framework of periodic reviews based its decisions to keep Hamas on the list on open source material (press, internet) and not on a new decision of the national authorities concerned. Accepting this objection of the Council led the Court of Justice to set aside the judgment of the General Court. It referred the case back to this Court to give a new judgment.

The conclusion is that the very formalistic reasoning of the General Court to erase Hamas from the EU’s list of terrorist persons, groups and entities has been rejected. So far, Hamas remains on this list. It is now up to the General Court to look again into the claim of Hamas, taking into account this judgment of the Court of Justice. I guess the Council will be able to convince the General Court that having regard to recent information, it is justified to keep Hamas on that list.

Dr. Matthijs de Blois, senior fellow

The Hague Initiative for International Cooperation

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*) The Court of Justice of the European Union is composed of the Court of Justice, the General Court and specialized courts. The Court of Justice, the highest court in the EU structure, may hear appeals against judgments of the General Court. This case is an example. The Council is composed of representatives of the member states of the EU. It is in the field of the implementation of the common foreign and security policy the major decision-making institution.