ECJ upholds freezing of the Melli Bank funds, C-380/09 P

On 03/03/2008 the United Nations Security Council issued Resolution 1803 (2008) calling on “all States to exercise vigilance over [...] Bank Melli [...] in order to avoid such activities contributing to the proliferation sensitive nuclear activities, or to the development of nuclear weapon delivery systems” (§ 17). On 23/06/2008, under Common Position 2008/479/CFSP the EU Council froze the Melli Bank plc funds. The latter is owned by the Melli Bank Iran (بانک ملی ایران‎) that is owned by the Iranian Government (§ 19).

The Melli Bank raised a number of points of law before the EU General Court and, on appeal C-380/09 P, before the ECJ:

1. The Melli Bank maintained that the grammatical structure of legal acts requires giving specific and individualized reasons for freezing its funds (§§ 34-35). The UK based Melli Bank did not participate in nuclear proliferation. The ECJ replied that the fact that the EU Council has the discretion as to by whom the entity is “owned” does not mean that the EU Council also has discretion to assess whether that entity plays a part in nuclear proliferation (§ 42).
2. The Melli Bank pointed that the UN Resolution calls to “exercise vigilance” and not “freeying of funds”. Thus, the EU measure is disproportional (§ 47). The ECJ replied that the UN and the EU are “distinct legal orders” (§ 54), and that the EU freezing serves the “terms and objectives” of the UN vigilance (§ 55). Finally, it cannot be inferred from the UN Resolution that there is no need to freeze the funds (§ 57).
3. The Bank proposed that the proportional measures could be of prior authorization and supervision by an independent agent and of total prohibition of transactions with Iran. The ECJ replied that this argument was mentioned for the first time at the hearing, and therefore could not be taken into consideration (§ 59).
4. According to the Melli Bank the EU General Court changed the burden of proof by requiring the Bank to demonstrate that measures alternative to freezing would be entirely effective (§ 47). The judges reply that a “lack of evidence” does not fall to be reviewed by the ECJ (§ 59).
5. The Melli Bank argues that the competition law entitles it to make submissions to the EU institutions while consideration of the measures (§ 67), that freezing of funds is comparable to criminal penalty, and therefore there is a breach of the presumption of innocence (§ 69). The ECJ interprets that the fact of being “owned” by Iran is a sufficient ground, and it is not “necessary to carry out further review”.

ECHR introduces common standards for parliamentary immunity, Onorato v Italy, 26218/06

ECHR de facto waived immunity of Marcello Dell’Utri, Member of Italian Parliament from political party “The People of Liberty”, and senior adviser to Prime Minister Silvio Berlusconi. The Italian Court of Cassation condemned him for fiscal fraud. The judge-reporter Pierluigi Onorato was a former Member of Parliament from the Communist Party. Therefore, Dell’Utri declared in the press that it was a political judgment. The judge-ex-communist started a civil action for defamation.

The Italian Parliament did not waive the immunity of Dell’Utri, so the issue (right to court) was forwarded to Strasbourg. ECHR 7 judge chamber, with one dissident opinion, provided the following reasons for the waiver of immunity:

1) After the refusal to waive parliamentary immunity, judge Onorato lost any possibility of effective access to court on this issue (§§ 45, 54).
2) It is correct that parliamentary immunity is a long practice having the aim to protect the freedom of expression of Members of Parliament from political persecution (§ 48), however the words of Dell’Utri did not have an “obvious” link with the legislative process (§§ 50, 52).
3) The accusation made by Dell’Utri did not concern the relations between the legislative and judicial branches of power (§ 51).
4) Therefore, the denial of the right to court is disproportional (§ 52).
5) Therefore, it violates the “fair balance” between the “imperative of fundamental rights” (right to court) and the general interest of the community (freedom of expression of the people’s representative) (§ 53).

An interesting point of this legal strategy was that judge Onorato did not stop after the refusal of the Italian Parliament to waive immunity but continued the legal proceedings.

"No" to imprisonment of illegal immigrants, El Dridi, C-61/11 PPU

In case El Dridi, C-61/11 PPU, given the status of urgency, the ECJ declared the imprisonment of an illegal immigrant for 1 year due to failure to leave the Italian territory, a measure ordered by the national authorities, contrary to the principle of compliance with the Union law (Article 4(3) TEU, § 56), since the Directive 2008/115 subjects coercive measures to the principles of proportionality and effectiveness (§ 57).

An extremely interesting part of the judgment is § 61 where the CEJ says two things:

1) The national Courts must refuse to apply the national law contrary to the Union law.
2) A retroactive application of a more lenient penalty is a part of the constitutional traditions common to the Member States.