The European Court of Justice (the “ECJ”) has submitted new Draft Rules of Procedure of the General Court (the “Draft Rules”) to the EU Council for approval. The Draft Rules propose changes to the procedural rules of evidence in applications for annulment or judicial review of restrictive measures by designated persons or entities. The Draft Rules have now been publicly published.
Article 105 of the Draft Rules signals a departure from the adversarial principle, under which all information and material must be fully communicated between the parties, and would enable EU institutions to request that the General Court consider evidence without disclosing it to the other party on the grounds that disclosure of such evidence would harm the security of the EU or the conduct of international relations.
To date, the ECJ has held that rights of defence do not permit the EU Council to rely on reasons for including an individual on EU restrictive measures unless the Council discloses those reasons and evidence to the designated person or entity. See for example Kadi v Commission (Kadi II).