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Case-note on Joined Cases C-402/05 P & C-415/05 P Yassin Abdullah Kadi & Al Barakaat International Foundation v. Council of the European Union & Commission of the European Communities

Published online by Cambridge University Press:  06 March 2019

Maria Tzanou

Extract

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“Any society that would give up a little liberty to gain a little security will deserve neither and lose both.”

On 3 September 2008, the European Court of Justice (ECJ) handed down its long-awaited decision on the Kadi and Al Barakaat International Foundation where, setting aside the relevant judgments of the European Court of First Instance (CFI), the Court held that the Community judicature must ensure the full review of the lawfulness of all Community acts. This included those deriving from UN Security Council's resolutions, in the light of the fundamental rights as protected by Community law.

Type
Developments
Information
German Law Journal , Volume 10 , Issue 2 , 01 February 2009 , pp. 123 - 154
Copyright
Copyright © 2009 by German Law Journal GbR 

References

1 The phrase is attributed to Benjamin Franklin. This is a variety, the original being: “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety”.Google Scholar

2 Joined cases C-402/05P & C-415/05P Kadi & Al Barakaat International Foundation v. Council and Commission, judgment of the Court of Justice of the European Communities (Grand Chamber), 3 September 2008.Google Scholar

3 Case T-315/01 Kadi v. Council and Commission 2005 E.C.R. II-3649; and Case T-306/01 Yusuf and Al Barakaat International Foundation v. Council and Commission 2005 E.C.R. II-3533.Google Scholar

4 See Kadi, supra note 2, para 326.Google Scholar

5 See, for more details, the UN specific counter- terrorism activities available at: http://www.un.org/terrorism/, last accessed 23 February 2009.Google Scholar

6 The international press has described September 11, 2001 as “The day that changed the world.”Google Scholar

7 SC Res. 1267 of 15 October 1999.Google Scholar

8 SC Res. 1333 of 19 December 2000.Google Scholar

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11 Council Regulation (EC) No 467/2001 of 6 March 2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealing Regulation (EC) No 337/2000. OJ L 067; 09/03/2001 P. 0001 – 0023.Google Scholar

12 SC Res. 1390 (2002) of 28 January 2002.Google Scholar

13 SC Res. 1453 (2002) of 24 December 2002.Google Scholar

14 Council Common Position 2002/402/CFSP of 27 May 2002 concerning restrictive measures against Usama bin Laden, members of the Al-Qaida organisation and the Taliban and other individuals, groups, undertakings and entities associated with them and repealing Common Positions 96/746/CFSP, 1999/727/CFSP, 2001/154/CFSP and 2001/771/CFSP OJ L 139, 29/05/2002 P. 0004 – 0005; and Council Common Position 2003/140/CFSP of 27 February 2003 concerning exceptions to the restrictive measures imposed by Common Position 2002/402/CFSP. OJ L 053, 28/02/2003 P. 0062 – 0062.Google Scholar

15 Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan OJ L 139, 29/05/2002 P. 0009 – 0022.Google Scholar

16 Council Regulation (EC) No 561/2003 of 27 March 2003 amending, as regards exceptions to the freezing of funds and economic resources, Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban OJ L 082, 29/03/2003 P. 0001 – 0002.Google Scholar

17 The requirements of Art 230 (4) EC were met because the applicants were identified by name in Annex I to the contested regulation, thus, they were directly and individually concerned.Google Scholar

18 There is no authoritative definition of “sanctions” under either international law or EU/EC law. Both the EC Treaty and the Treaty on European Union use the term “measures”, while Article 41 of the UN Charter refers to “measures not involving recourse to armed force”. In doctrine, the term “sanctions” is used to describe a general or specific export/import measure directed against a state, or a particular economic sector of it. See I. Cameron, ‘Respecting Human Rights and Fundamental Freedoms and EU/UN Sanctions: State of Play', Brussels, European Parliament, October 2008.Google Scholar

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20 R. Geiss, Humanitarian Safeguards in Economic Sanctions Regimes: A Call for Automatic Suspension Clauses, Periodic Monitoring, and Follow-up Assessment of Long-Term Effects, 18 Harvard Human Rights Journal, 167 (2005); Reisman, M., Assessing the Lawfulness of Nonmilitary Enforcement: The Case of Economic Sanctions, 89 American Society of International Law Proceedings, 350 (1995).Google Scholar

21 Cameron, supra, note 18, at 5.Google Scholar

22 On the debate about smart sanctions see the results of the Interlaken Process −1st and 2nd Interlaken Seminarson Targeting United Nations Financial Sanctions, documents available at http://www.smartsanctions.ch, last accessed 23 February 2009. See also, D. Drezner, How Smart are Smart Sanctions?, 5 International Studies Review, 107 (2003); Herik, L., The Security Council's Targeted Sanctions Regimes: In Need of Better Protection of the Individual, 20 Leiden Journal of International Law, 797 (2007).Google Scholar

23 As far as the ‘listing of suspected terrorists’ by the EU is concerned, we can distinguish three categories: the listing that derives from UNSC and where the institutions of the EU have no autonomous power to designate the persons and entities included in the list, the listing that derives from UNSC, which in this case do not refer to specific individuals, thus the EU institutions have the power to decide who will be included in the list, and the so-called ‘home terrorists', who do not have any link with outside the EU. In the first two categories of listing, the Community can freeze the funds of the individuals since there exists a link between them and a third country, whereas that is impossible in the third category.Google Scholar

24 Article 301 EC provides: “Where it is provided, in a common position or in a joint action adopted according to the provisions of the Treaty on European Union relating to the common foreign and security policy, for an action by the Community to interrupt or to reduce, in part or completely, economic relations with one or more third countries, the Council shall take the necessary urgent measures. The Council shall act by qualified majority on a proposal from the Commission.”Google Scholar

25 Article 60 (1) EC reads as follows: “If, in the cases envisaged in Article 301 EC, action by the Community is deemed necessary, the Council may, in accordance with the procedure provided for in Article 301, take the necessary urgent measures on the movement of capital and on payments as regards the third countries concerned.”Google Scholar

26 See generally: P. EECKHOUT, EXTERNAL RELATIONS OF THE EUROPEAN UNION- LEGAL AND CONSTITUTIONAL FOUNDATIONS, (OUP, 2004), 424;.MCLEOD, HENDRY and HYETT, THE EXTERNAL RELATIONS OF THE EUROPEAN COMMUNITIES: A MANUAL OF LAW AND PRACTICE, (OUP, 1996), Ch.19; KOUTRAKOS, EU INTERNATIONAL RELATIONS LAW, (Hart, 2006), 429; and G. Zagel, Sanctions of the European Community: A Commentary on Art. 301 TEC. Law of the European Union, Available at SSRN: http://ssrn.com/abstract=862024, last accessed 23 February 2009.Google Scholar

27 Yusuf & Al Barakaat, supra note 3, para 112.Google Scholar

28 Yusuf & Al Barakaat, supra note 3, para 121.Google Scholar

29 Kadi, supra note 3, para 89.Google Scholar

30 Article 308 EC provides: “If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.”Google Scholar

31 Kadi, supra note 3, para 69.Google Scholar

32 Id., para 97.Google Scholar

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34 Id., para 100.Google Scholar

35 Id., para 123.Google Scholar

36 Id., para 128.Google Scholar

37 Kadi & Al Barakaat, supra note 2, para 197.Google Scholar

38 Id., para 200.Google Scholar

39 Id., para 201.Google Scholar

40 Id., para 202.Google Scholar

41 Id., para 203.Google Scholar

42 Id., para 216.Google Scholar

43 Id., para 226.Google Scholar

44 Id., para 230. According to the ECJ, the unilateral restrictive economic or financial measures could affect the movement of capital and payments, and on the exercise by economic operators of their right of establishment. In addition, they could create distortions of competition, because any differences between the measures unilaterally taken by the Member States could operate to the advantage or disadvantage of the competitive position of certain economic operators although there were no economic reasons for that advantage or disadvantage.Google Scholar

45 Id., para 235.Google Scholar

46 Formerly Article 228a.Google Scholar

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50 P. Koutrakos, Legal Basis and Delimitation of Competence in EU External Relations, in EU Foreign Relations Law, Constitutional fundamentals, 171, 195 (Cremona, M. & Witte, B. de eds.), (Hart 2008) who notes “Therefore, it was through trial and error that the Member States chose the EC legal framework as the most appropriate mechanism for the imposition of sanctions. It would be a retrograde step if the Member States felt compelled to resort to national law to implement UN sanctions: the Community legal order would be prevented from exploring its full potential as an international actor, the Member States would be tempted to under utilize the Community mechanism and the effectiveness of the sanctions regimes would be undermined”.Google Scholar

51 Opinions of Advocate General Poiares Maduro in Case C-402/05 P Kadi, delivered on 16 January 2008 and in Case C-415/05 P Al Barakaat, delivered on 23 January 2008.Google Scholar

52 Id., Opinion of AG Maduro in Kadi, para 13.Google Scholar

53 Kadi & Al Barakaat, supra note 2, para 167.Google Scholar

54 Id., para 168.Google Scholar

55 Id., para 221, where the ECJ noted “The United Kingdom takes the view that the purely instrumental specific objective of the contested regulation, namely, the introduction of coercive economic measures, must be distinguished from the underlying CFSP objective of maintaining international peace and security”.Google Scholar

56 Kad,i supra note 3, para 116, The CFI held that the fight against international terrorism cannot be made to refer to one of the objects which Articles 2 EC and 3 EC entrust to the Community.Google Scholar

57 D. Wyatt &.A. Dashwood, European Union Law, (5th ed., Sweet & Maxwell 2006), 90.Google Scholar

58 Case C-91/05 Commission v Council (Judgment of 20 May 2008)Google Scholar

59 Id., para 33.Google Scholar

60 In this respect see Emiliou, N., Opening Pandora's Box: The legal basis of Community measures before the Court of Justice, European Law Review 19 (5), 488 (1994), who notes that: “the application of the theory of implied powers in the system of the Treaties can only relate to existing powers of action. It cannot fill a gap in the totality of the specific powers conferred on the institutions for the activities of the Community–for this purpose, a provision like Article 235 EC [now Article 308 EC] has been created–but it can only supplement a specific power to act, explicitly conferred on the Community, which shows a gap”.Google Scholar

61 Kadi, supra note 3, paras 105–110.Google Scholar

62 Id., para 111.Google Scholar

63 Case C-376/98 Germany v. Parliament and Council [2000] E.C.R. I-8419.Google Scholar

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67 It is worth noting that some commentators read the judgment of the Court in the Case C-300/89 Commission v Council (Titanium dioxide) [1991] E.C.R. I-2867, as favouring the legal basis which offered the greatest opportunity for participation of the European Parliament in the legislative process.Google Scholar

68 Case C-269/07 Commission and Parliament v. Council, 2000 E.C.R. I-2257.Google Scholar

69 Id., para 44.Google Scholar

70 Tomuschat, C., Case-note on Yusuf/ Kadi- judgments, 43 CMLR, 539, 540 (2006), that finds the Court's answer “intelligent” and its line of reasoning “entirely persuasive”. Also Koutrakos (note 52), at 194, observes that the CFI's argument is “entirely proper and wise”. On the other hand, C. Eckes, Judicial Review of European Anti-Terrorism measures –The Yusuf and Kadi judgments of the Court of First Instance, European Law Journal 14 (1), 74, 81 (2008), concludes that: “the Court disregarded the constitutional boundaries of the Treaty, in particular the principle of conferred powers and the principle of subsidiarity. This results in a threat to the human rights of those sanctioned… Additionally, the judgments endanger the power balance between the Community and the Member States…”.Google Scholar

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73 Kadi, supra note 3, para 178.Google Scholar

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75 Article 103 of the UN Charter provides: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”.Google Scholar

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92 Id., para 286.Google Scholar

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96 Id., para 296.Google Scholar

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103 Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen 1963 E.C.R. 1.Google Scholar

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126 BverfG 37, 327 (Solange I), BverfG 73, 339 (Solange II) and BverfG 89, 115 (Maastricht- Urteil).Google Scholar

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