Judicial Policymaking in the EU Courts: Safeguarding Due Process in EU Sanctions Policy Against Terror Suspects

At the outset, EU autonomous sanctions against terror suspects and the steps the EU has taken to facilitate the implementation of UN sanctions against Al Qaeda and the Taliban by EU member states have clearly infringed upon the basic due process rights of targeted parties. Over time, although shortcomings do persist, the EU has markedly improved its procedures for adding and removing individuals, groups and entities from its autonomous sanctions list and it has amended the provisions guiding the implementation of UN sanctions. In this article, I argue that judicial policymaking in the EU courts—the European Court of Justice and the Court of First Instance—has been the driving force behind this evolution. By issuing judgments that challenged the compliance of the EU’s sanctions-related procedures with EU law, the courts compelled the EU to introduce reforms that took at least some stipulations of the court judgements into account. At the same time, the courts, acknowledging their legal and political restrictions, refrained from demanding reforms that would have provided for more effective due process protection but that would have been overly costly to EU member states. These limitations notwithstanding, judicial policymaking can thus be seen as a valuable tool for safeguarding human rights in EU counter-terrorism.