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This chapter distinguishes the two types of European sanctions against individuals and places them in the international legal context. It briefly discusses the Security Council resolutions that led to the adoption of European sanctions against individuals. It introduces the adoption procedure and the different regulatory measures used to adopt sanctions against individuals in the EU. It further places individual sanctions in the context of other counter-terrorist policies at the international, European, and national level. Finally, the chapter introduces differing assessments of the effectiveness of counter-terrorist sanctions against individuals.

This chapter takes a practical and principled look into the future, exploring whether and how individual sanctions could lawfully and legitimately be adopted under European law. The chapter is structured as follows. Section 1 examines how autonomous sanctions against individuals could be adopted in compliance with procedural rights. Section 2 considers procedural protection from European sanctions giving effect to UN lists. Section 3 addresses the necessary level of judicial control over individual sanctions. It considers the role of the judiciary in determining the line that separates lawful counter-terrorist measures from unjustifiable human rights restrictions. Section 4 discusses the proportionality of individual sanctions.

This concluding chapter wraps up the discussion and summarizes the findings. Community sanctions should be distinguished from Union lists of terrorist suspects. Despite repeated annulments by the EU courts of Community sanctions, the European institutions continue to list and sanction individuals. The institutions have introduced limited procedural changes. However, as the repeated successful challenges of the same applicants show, individual sanctions continue to infringe the procedural and judicial rights of those listed. Because of a lack of information, the EU courts have not so far reviewed the well-foundedness of a single decision to list and sanction someone as a terrorist. They annul Community measures for breaching procedural rights. By contrast, the EU courts have not so far annulled any of the Union listings. Those included on Union lists remain in a ‘legal protection limbo’ without full access to justice. Hence, despite the repeated acknowledgement that ‘the systematic violation of human rights undermines true national security and may jeopardize international peace and security,’those targeted by sanctions against individuals continue to be effectively deprived of their rights. The European institutions remain largely free to draw up Union lists of terrorist suspects without legal scrutiny. This is irrespective of whether they identify those persons themselves, or whether they lend their name and credibility to the UN lists of terrorist suspects.

This chapter examines the ways in which European sanctions against private individuals clash with the well-established right of access to justice, both under the European Convention on Human Rights (ECHR) and under EU law. Particular attention is paid to the criminal implications of individual sanctions. The structure of the chapter is as follows. Section 1 outlines the commitment of the EU to the rule of law. Section 2 emphasizes the importance of the ECHR for EU law and points out the difference of fundamental rights protection under the ECHR and under EU law. Section 3 conducts a detailed analysis of whether and to what extent those listed as terrorist suspects under Union law and those sanctioned by the Community can rely on Article 6 ECHR in light of the case-law of the European Court of Human Rights (ECtHR). It shows that both the Court of First Instance (CFI) and the ECtHR departed from established standards of fundamental rights in cases concerning individual sanctions. It is submitted that those targeted by European sanctions against individuals have a right to judicial review according to Article 6 ECHR and, even if only applied subsidiarily, a right to an effective remedy under Article 13 ECHR. It is further argued that the criminal characteristics of individual sanctions require a strict application of Article 6 ECHR.

This chapter examines the quality of procedural and judicial protection from Community regulations and demonstrates that judicial review of Union lists is not only necessary from the perspective of the individual, but that such a review is also required by European law. The structure of the chapter is as follows. Section 1 examines the protection offered to those targeted by European sanctions giving effect to Union lists of terrorist suspects. This includes both protection from Community and Union law. Section 2 discusses different avenues that lead to judicial review of Union law. Section 3 briefly analyzes the protection from Union listings before the European Court of Human Rights (ECtHR), while Section 4 examines the possibility of judicial review of Union law in national courts. The starting point for the latter examination is the Opinion of Advocate-General Mengozzi in the case of Segi. Section 5 analyses the interplay between the different courts in Europe. It attempts to point out how the decisions of the ECtHR and the national courts influence the rulings in the EU courts. A conclusion wraps up the discussion.

This chapter analyzes the competences of the Community and the European Union (EU) to adopt sanctions against individuals. It argues that, de lege lata, neither the EU nor the Community have the competence to adopt sanctions against private individuals. If, however, such measures were to be adopted within the EU, certain parts of the procedure, such as identifying those that will be targeted with sanctions, would have to take place under the first pillar (Community law). The structure of the chapter is as follows. Section 1 focuses on the competences of the Community to adopt individual sanctions. Section 2 focuses on the two Union pillars (Common Foreign and Security Policy (CFSP) and Police and Judicial Cooperation in Criminal Matters (PJCC)). Section 3 analyses how the current way of adopting individual sanctions threatens the competence distribution between the three pillars of the EU (horizontal division), while Section 4 looks into the power balance between the EU and its Member States (vertical division). Section 5 addresses the changes under the Lisbon Treaty and discusses to what extent the existing problems are resolved by the new provisions.