On 20 April 2023, in Council v El-Qaddafi (C-413/21 P) the European Court of Justice (‘the ECJ’) dismissed the appeal brought by the Council of the European Union (‘the Council’) against the judgment of the General Court of the European Union (‘the General Court’). The ECJ concluded that the General Court was correct in finding that the Council had no factual basis to justify the retention of Ms Aisha El-Qaddafi’s name on the contested acts of 2017 and 2020.
In this case the ECJ again made clear that the Council needs to do its homework and regularly review and provide up-to-date justifications for listings in order to be in a position to take into account of the fact that the behaviour of targeted individuals, or their individual situation, might have changed over time.
In this context the ruling of the ECJ is welcome considering that the Council’s procedure for reviewing listings has been criticised for being a process in which listings are renewed almost automatically rather than properly reviewed, thereby leaving individuals listed indefinitely. The Council’s own ‘EU Best Practices for the effective implementation of restrictive measures’ recognises that an effective de-listing procedure is essential to the credibility and legitimacy of sanctions. It states in unequivocal terms that ‘delisting is appropriate wherever the criteria for listing are no longer met’ and gives examples including ‘a relevant subsequent change of facts’.
Ms Qaddafi was listed initially when, following the war in Libya in 2011 and the fall of the regime, Resolution 1970 (2011), (‘the Resolution’) was adopted by the United Nations Security Council (‘UNSC’) on 26 February 2011. The Resolution introduced sanctions against Libya and against persons and entities involved in serious human rights abuses, including involvement in attacks on civilian populations. The lists in the Annexes of the Resolution include the name of Ms. Qaddafi describing her as the ‘daughter of Muammar Qadhafi’ and referring to the ‘closeness of [her] association with [the] regime’.
For the purposes of implementing the UN Resolution, the Council adopted various decisions and regulations, which included the introduction of travel bans and/or an asset freeze on persons/entities covered by Resolution 1970 (2011). Ms Qaddafi was one of the persons listed. In the context of a periodic review by the Council, Ms Qaddafi’s listing was maintained in 2017 and 2020. She challenged the Council’s decision to maintain her on its lists on the basis of her association with the former Libyan regime.
The ECJ agreed with the General Court that the Council had failed to establish ‘that the reasons for maintaining her name on the lists at issue were well founded’. The General Court held that the relevant EU law required an up-to-date assessment of the facts by the Council.
According to the Council one reason for maintaining Ms Qaddafi’s name on the list was that in 2011 and 2013 Ms Qaddafi had made public statements calling both for the overthrow of the Libyan authorities that had been established following the fall of her father’s regime and for his death to be avenged; and that owing to those statements she can be regarded as an individual who ordered or otherwise directed the commission of serious human rights abuses against persons in Libya (see §57 of the judgment).
In upholding the General Court’s findings, the ECJ was clear in its position and in reaffirming its previous case law, that information and evidence relied on by the Council must be up to date. In its findings, the General Court noted that the Council had failed to explain how the information concerning the two statements was still up to date, or how Ms Qaddafi continued to be a threat to international peace and security in the region in 2017 and 2020 when the contested acts were adopted. Ms. Qaddafi had ceased to reside in Libya and the Council’s file did not mention any participation on her part in Libyan political life.
The ECJ noted that given the considerable amount of time that elapsed between the two statements in 2011 and 2013 and the challenged acts in 2017 and 2020, and also the changes to Ms Qaddafi’s individual situation, the Council’s decision to keep Ms Qaddafi’s name on the lists in 2017 and 2020 without the Council having explained in what respect those matters were still current at the time those acts were adopted did not constitute a sufficient basis for those acts. (§69 of the judgment)
In view of the passage of time and in the light of changes in the circumstances of the case, the Council was obliged to base the retention of an individual on the list on an up-to-date assessment of the situation, and to consider more recent facts which demonstrate that that reason still obtains. In this respect, the ECJ relied on its previous case law regarding the retention of designated terrorist organisations in which it ruled that the establishment of a continued risk of the person or entity concerned being involved in terrorist activities required an up-to-date assessment in Council v LTTE, (C-599/14 P) and Council v PKK, (C-46/19 P). (See §75 of the ECJ’s judgment.)
The ECJ’s ruling in the case at hand shows that the Court conducts a rigorous judicial review of listings based on UN Security Council resolutions ensuring that the reasoning for individual listings is supported by accurate, relevant and up-to-date evidence. The rigorousness of the ECJ’s review needs to be seen also in the context that Ms Qaddafi cannot challenge her UN listing before any independent judicial mechanism. The impossibility of directly challenging UN sanctions has for many years been widely and rightly criticised considering the right of access to justice of targeted individuals and the drastic impact the sanctions have on their lives.
The EU courts have become an important avenue for challenging UN listings since the ECJ in the landmark case Kadi I held that EU instruments implementing UN measures must comply with fundamental rights of targeted individuals including judicial protection. By holding that EU courts have jurisdiction to review EU sanctions measures implemented pursuant to UN obligations, targeted individuals have an indirect route to the judicial review of UN Security Council resolutions. As a result, since Kadi I the EU courts have become a key forum for challenging sanctions, whether imposed autonomously by the EU or in implementation of UN sanctions.
It is hoped that EU Courts’ rulings, in cases like the present one, will send a signal to States to request a delisting of the targeted individuals and to relevant Sanctions Committees that it too must delist them if the reasoning for the listings are no longer relevant.
Ms Qaddafi at the time of writing of this blog was still listed by the EU despite the ECJ’s ruling on 20 April 2023. On 15 May 2023, the UN Libya Security Council Committee granted a humanitarian travel exemption, effective from 1 June through 30 November 2023, to Ms Qaddafi.
It remains to be seen if the Council will be renewing the listing of Ms Qaddafi based on an up-to-date assessment supported by new evidence or whether in the absence of such evidence the Council will finally delist her some 12 years after her initial listing.
Antje Kunst is an international lawyer and a member of Pavocat Chambers advising and representing individuals in a wide range of matters in the field of the EU’s Common Foreign Security Policy (CFSP ) and takes instructions from individuals for challenging EU and UN sanctions before the EU courts and international bodies.
