Procedural Rights in the Context of Restrictive Measures: Does the Adversarial Principle Survive the Necessities of Secrecy?

Abstract

Safeguarding fundamental procedural rights in the context of security concerns has been topical in the EU ever since the increased threats of terrorism post-9/11. This Article revisits the landmark case law on Kadi, which provided the premise for balancing due process rights and security concerns in the context of restrictive measures. The focus of this Article is on the specific procedural right of access to the file. The Article begins with a description of the legal framework on restrictive measures to the extent it is necessary for understanding the production and flow of information in the sanctions context. It then proceeds to scrutinise the development of the right of access to the file in this context through the Kadi cases and subsequent case law. The Article moves on to deal with the new developments in the Rules of Procedure of the General Court, which introduced a new closed procedure in cases concerning security related information or evidence, something that has clear implications for the targeted person’s right of access to the file. The amendments to the Rules of Procedure challenge the traditional role of the Court and, so it is argued, pose some challenges to its legitimacy.