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Published online by Cambridge University Press: 09 April 2013
The relationship between EU law and international law has, again, recently occupied the European Court of Justice with respect to the compatibility of the EU Treaty with international obligations. It will be recalled that in the Kadi judgment1 the Court examined whether adoption of a UN Resolution in the form of a Council Regulation2 which, prima facie, restricted the fundamental rights of Kadi was congruent with principles of EU law. In Kadi, the Court, adopting a constitutionalist position with regard to the protection of fundamental rights, held that protecting the applicant's fundamental rights under the Treaty was a priority which could not be diminished, even when the EU was implementing a UN Resolution into EU law. Thus, in Kadi, the Court concluded that providing clear fundamental rights safeguards through judicial review of the Regulation was a fundamental principle of EU law. To this extent, the Court was only prepared to accept compliance with internal obligations if they were harmonious with principles of fundamental rights norms, as understood through the case law of the Court.
1 Joined cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351.
2 Council Regulation (EC) 881/2002 of 27 May 2002 Imposing Certain Specific 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.
3 See eg de Búrca, G ‘The European Court of Justice and the International Legal Order after Kadi (2010) 51 HarvIntlLJ 1Google Scholar.
4 Case C-364/10 Hungary v Slovakia, judgment of the Court of 16 October 2012 (not yet reported).
5 See the Opinion of Advocate General Bot at para 24.
6 See eg Case C-110/99 Emsland-Stärke [2000] ECR I-11569 which the Court distinguished from this one, primarily for the reason that because the substantive operation of Article 21 TFEU and Directive 2004/38 was not relevant to the case, the question of their abuse by Slovakia was not relevant.
7 Judgment of the Court at para 26.
8 Council Directive of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p 44).
9 Case C-162/96 Racke [1998] ECR I-3655.
10 Case C-286/90 Poulsen and Diva Navigation [1992] ECR I-6019.
11 See Racke (n 9) at paras 40–43.
12 Joined cases C-241/91 P and C-242/91 P RTE and ITP v Commission [1995] ECR I-743.
13 Case C-301/08 Bogiatzi [2009] ECR I-10185.
14 See eg Case C-184/99 Grzelczyk [2001] ECR I-6193, para 31; Case C-135/08 Rottmann [2010] ECR I-1449, para 43; and Case C-256/11 Dereci and Others [2011] ECR I-0000, para 62.
15 Judgment of the Court at paras 42–43.
16 See also the Opinion of Advocate General Bot at paras 47–50.
18 Judgment of the Court at para 64.
19 See eg Case C-459/99 MRAX v Belgium [2002] ECR I-6591; Case C413/99 Baumbast and R v Secretary of State for the Home Department [2002] ECR I-7091; and Case C-60/00 Mary Carpenter [2002] ECR I-6279.
20 The EC–Turkey Association Agreement 1963 gives the most extensive rights to TCNs legally resident in the EU. The Agreement continues to generate litigation which contributes to the general principles of Community law and the free movement provisions: Case C-502/04 Torun v Stadt Augsburg [2006] ECR I-1563.
21 Joined cases C-356/11 S v Maahanmuuttovirasto and C-357/11 Maahanmuuttovirasto v L, judgment of the Court of 6 December 2012 (not yet reported).
22 Case C-34/09 Ruiz Zambrano, judgment of the Court of 8 March 2011 (not yet reported).
23 Ibid, para 41.
24 ibid; Case C-434/09 McCarthy, judgment of the Court of 5 May 2011 (not yet reported) at para 46; and Case C-256/11 Dereci and Others, judgment of the Court of 15 November 2011 (not yet reported) at para 61.
25 See McCarthy at para 48, and Dereci and Others at para 63.
26 Ruiz Zambrano (n 22) at para 42.
27 ibid, paras 43 and 44.