NCRI – “Procedural points are important, they have no less validity, and I would like to stress, so as to avoid any suspicion lingering, that the ruling cannot be dismissed as a “just a procedural decision”. It was necessarily a procedural decision; it was a decision necessarily of a procedural nature: because the Court could not rule on the merits, that was precisely the point, that was the violation of human rights,” said Dr. Maria-Gisella Garbagnati, Italian jurist, expert on Community law and the European Court of Justice.
NCRI – “”Procedural points are important, they have no less validity, and I would like to stress, so as to avoid any suspicion lingering, that the ruling cannot be dismissed as a “just a procedural decision”. It was necessarily a procedural decision; it was a decision necessarily of a procedural nature: because the Court could not rule on the merits, that was precisely the point, that was the violation of human rights,” said Dr. Maria-Gisella Garbagnati, Italian jurist, expert on Community law and the European Court of Justice,” said Dr. Maria-Gisella Garbagnati, Italian jurist, expert on Community law and the European Court of Justice.
She was speaking in an international conference in Paris on February, 5, about the European Union’s Court of first instance annulling council decision 2005|930|EC regarding the proscription of the Peoples Mojahedin Organization of Iran and to freezing its assets. Here is the text of her speech:
I would like to thank the organizers for inviting me to be here today, especially as I was involved only from a relatively late stage in the proceedings, and in a rather junior role. It is difficult to go back to fine legal points, after the passionate political statements we have just heard. Also, I would not like to try to go over the legal points, which were made so eloquently by previous speakers.
I would just like to confine myself to a few remarks. First of all: in the past, the Court of Justice has shown considerable judicial self-restraint, when it came to reviewing political decisions of the Member States – or rather, legal decisions which have a political connotation. The balance which the Court has now managed to stike between the national security interests of the Member States and the protection of human rights bodes well for the future, so well done to the Court for rising up to the challenge. It took some courage to avoid hiding, like the Court has done in the past, behind the easy option of avoiding judicial review of the Community decision. As Professor Labayle pointed out so well, the Court decided to review this measure, when it could have taken the easy option of hiding behind the CFSP common position, which it cannot review, and say: well, we have no jurisdiction over this. Let us hope this is the start of a new phase, where the Court will tilt the balance more towards the protection of human rights and less towards the national security interests of the Member States – particularly, when such interests are not put before the Court.
And this is the second point which I would like to make, and it has been made before. It has been said that this ruling by the Court of First Instance is of a procedural nature. That is certainly true, and so is the fact, which was pointed out earlier, that procedural points sometimes do win the case: I am sitting next to someone who, years ago, in a competition law case, put forward a hundred and ninety two procedural points, lost a hundred and ninety one, but one of them was upheld, and he went on to win the case. That is David Vaughan, sitting next to me. Procedural points are important, they have no less validity, and I would like to stress, so as to avoid any suspicion lingering, that the ruling cannot be dismissed as a “just a procedural decision”. It was necessarily a procedural decision; it was a decision necessarily of a procedural nature: because the Court could not rule on the merits, that was precisely the point, that was the violation of human rights. Evidence was refused; evidence was not produced before the Court. The Court was therefore in no position to rule on the merits. I would like to stress this again, because there have been dismissive statements from some quarters; so I think it is worth underlining once more.
As far as the behaviour of the Council following the ruling in December is concerned, I hope this has less to do with a political motivation, specifically related to PMOI, and more to do to with a more general reason, namely the wish of the Council not to be perceived as giving up easily on such a sensitive matter as the EU’s anti-terrorist legislation. In other words, the Council may want to send the message to applicants in other cases pending before the Court that their funds will not be automatically released, should they win their case. Either way, the behaviour of the Council is illegal, as it goes against the ruling of the Court, and it is therefore unacceptable. That is the last point I wanted to make.
Thank you very much.
