Return• to the due process of law: the European Union and the fight against terrorism Comment on Court of First Instance judgment of December 16, 2006, Case T-228/02, Organisation de Modjahedins de l’Iran v Council

In the first judgments concerning anti-terrorism measures provided by the Council of Ministers, the Court of First Instance (CFI) showed deference towards political choices. It was not unaware of the serious consequences which derived from such measures. However, according to the CFI, it was necessary to comply with UN law. Coherently with this doctrine, in OMPI the CFI distinguished between cases in which UN law applies, and the other cases in which the measures adopted towards individuals and legal entities suspect of supporting terrorism are the result of the choices made by EU institutions alone. As a consequence of this, disregard of procedural due process of law was taken more seriously. It determined the annulment of the measures provided by the Council. This does not mean, however, that judicial review has taken a new direction. Rather, OMPI can be seen to reflect a more traditional, though limited, conception of the due process of law. Anyway, the fact that the CFI refers to the process which is “due” not only to EU citizens, but also to all individuals and legal entities, ought not to be overlooked. Moreover, due process provides a proper test for measures colliding not only with property, but also with human dignity. It remains to be seen whether EU courts are willing to develop such a test, also in view of future judgments regarding financial compensation, seen as a surrogate for annulment.