Fundamental rights and the interface between second and third pillars

Following the terrorist attacks perpetrated first against the United States and later against Spain and the United Kingdom, action at international level to combat terrorism has grown steadily. Such action has been taken at both UN and EU level in forms previously unknown in the field of international co-operation. In particular, both the UN and the EU have taken upon themselves the task to identify organisations and individuals which are to be considered as terrorists by international and national communities alike. This process of identification of who or what should be considered a ‘terrorist’ occurs entirely in executive fora, thus challenging presumptions which have characterised post-war western democracies as to the division of competences between executive, legislature and judiciary, as well as deeply affecting established systems of checks and balances. Furthermore, such evolution in intergovernmental action has not been matched by a corresponding evolution in the system of judicial protection. Thus whilst international co-operation in the field of counter-terrorism activity might well be vital to ensure an effective response to the terrorist threat, international organisations are ill equipped, as things stands, to guarantee even the more basic rights of individuals and organisations that are targeted through international instruments. The complexity of the interaction between international, European and national law makes it equally difficult for national (and European) judiciaries to intervene in such cases. Those might entail gathering of sensitive evidence possibly relating to another State; problems stemming from hierarchy of norms; inevitable political pressures of compromising the executive action and its standing in international relations. In the European Union context the tension between intergovernmental co-operation and effective judicial protection has become manifest following the adoption of a series of counter-terrorism measures, and in particular following the adoption of an EU list of terrorists using a mixed second and third pillar legal basis; and following the adoption of a Community Regulation to freeze the assets of some of the individuals and entities listed in the relevant Common Position. In this sense, the interface between second and third pillar, the instrumental use of Treaty competences to exclude or limit both judicial and democratic accountability, has determined a considerable reduction of fundamental rights standards in the European Union. This contribution explores such developments from a fundamental rights perspective. It focuses solely on action taken by the European Union out of its own agency, since action taken by the Union as a result of UN action is extensively explored elsewhere in this book. The overall claim of this contribution is that, given the lack of judicial protection available at European Union level, the main responsibility for ensuring effective review in those cases rests with the national courts which have, as a matter of European Union law, a duty to ensure that fundamental rights are adequately protected.