But Case T-49/04 merits further examination. The plaintiff in that case was Mr. Faraj Hassan, a Libyan detained in London's Brixton prison pending extradition to Italy on terrorism charges, who was listed as a person against whom economic sanctions should be taken by the UN Sanctions Committee and by Council regulation (EC) n° 881/2002 as amended by Commission regulation (EC) n° 2049/2003. Consequently, he sought the annulment of those regulations and damages too.
The Court of First Instance dismissed the actions for largely the same reasons as in Cases T-306/01 Yusuf and T-315/01 Kadi.
But three aspects of this case merit mention.
The first concerned the issue of which institution was the proper defendant. The original list of persons was drawn up by the Council in Regulation 881/2002 but Mr. Hassan was not on it. He was added to the list by the Commission by Regulation 2049/2003. So whom should he sue ? The Council, the Commission or both ? The Council submitted he should sue the Commission alone.
But the Court of First Instance held he could sue both. The Court stated that the Commission could obviously be sued as it was the author of Regulation 2049/2003. It held that the Council could be sued too because of the special role assigned to the Commission by the Council in Regulation 881/2002: The Council had empowered the Commission to emend or supplement the list of persons against whom sanctions should be taken on the basis of determinations made by the Sanctions Committee. And this is where it gets interesting. The Court found that regulations adopted by the Commission in that manner differed from implementing regulations commonly adopted by it under the 4th indent of Article 211 EC whereby the Commission exercises powers conferred on it by the Council for the implementation of the rules laid down by the latter to ensure the proper functioning and development of the common market. The Court seems to anticipate an element of confusion and states that though Regulation 2049/2003 constitutes measures for the implementation of Council Regulation 881/2002, it directly amends part of the enacting terms of Regulation 881/2002. It adds that allowing the plaintiff to sue both the Council and the Commission is in keeping with the principle that acts adopted on the basis of a delegation of powers are ordinarily imputable to the delegating institution (the Council) with the result that the action against the act of the body to which power has been delegated (the Commission) is admissible as being brought against the delegating institution (see Joined Cases 7/56 and 3/57 to 7/57 Algera and Others v. Common Assembly of the ECSC, at page 58, Joined Cases 32/58 and 33/58 SNUPAT v. High Authority, at page 127, and Joined Cases T-369/94 and T-85/95 DIR International Film and others v. Commission paragraphs 52 and 53).
The second aspect concerns the right to a hearing before inclusion in the list of persons against whom sanctions should be taken. The plaintiff relied on two judgments of the US Court of Appeals for the DC Circuit which held that the proscription of two Iranian organizations under the US Anti-Terrorism and Effective Death Penalty Act 1996 without a prior hearing infringed the constitutional rules on due process. The Court of First Instance dismissed that argument on the ground that the two US judgments concerned measures adopted by the United States alone and not measures transposing resolutions of the Security Council.
The third noteworthy aspect concerns the right of due process before the Sanctions Committee itself. The Court of First Instance held that the right of a person on the list to petition the Sanctions Committee - via the appropriate national authorities -for removal from the list was perfectly adequate. It held that it was "normal" that the right of the persons involved to be heard should be adapted to an administrative procedure on several levels (see, order of the President of the Second Chamber of the Court of First Instance in Case T-189/00 R 'Invest' Import und Export and Invest Commerce v. Commission and Cases T-306/01 Yusuf at paragraphs 314 and 315 and T-315/01 Kadi at paragraphs 267 and 268). It also, most unusually, referred to a domestic judgment, a judgment of the Court of First Instance of Brussels, in which it was ordered that the Belgian State should urgently request the Sanctions Committee to remove the names of two persons from the list of those against whom sanctions should be applied (case of Nabil Sayadi and Patricia Vinck v. Belgian State, of February 11th, 2005).