Joined Cases C-402 & 415/05 P: A. Court of Justice

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CASE LAW
A. Court of Justice
Joined Cases C-402/05 P & 415/05 P, Yassin Abdullah Kadi, Al Barakaat Inter-
national Foundation v. Council and Commission, judgment of the Grand
Chamber of 3 September 2008, nyr.
1. Introduction
On 3 September 2008 the European Court of Justice set aside the judgments of
the Court of First Instance of the European Communities of 21 September
2005 in the Kadi and Yusuf and Al Barakaat cases and annulled Council Reg-
ulation (EC) No. 881/2002 of 27 May 2002 imposing restrictive measures
directed against certain persons and entities associated with Usama bin Laden,
the Al-Qaeda network and the Taliban, in so far as it concerned Mr Kadi and
the Al Barakaat International Foundation.
The first reaction of every commentator committed to the cause of the pro-
tection of human rights cannot be but a sight of relief. At first glance, it appears
an extraordinary achievement that the Court, upholding the protection of fun-
damental rights – understood as a general principle of Community law – man-
aged to set in motion once more a serious debate on the controversial listing
and de-listing mechanism of the UN Sanctions Committee, which has “a seri-
ous impact on due process related rights for individuals suspected of terrorism,
as well as their families.”1 However, if that commentator happens to be, like
the present one, an international lawyer committed to the cause of the protec-
tion of international human rights law at the global level, to coherence of the
international legal system and the promotion of an effective dialogue between
international courts and international organizations, the second reaction would
be just a sigh of resignation.
To dispel any risk of misunderstanding, it is not the present writer’s view
that the ECJ made an error in firmly defending human rights inside the Com-
munity as it did. However, by asserting the self-contained character of the
1. Cf. Report of the Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism, Scheinin, submitted in accordance with
General Assembly Resolution 62/159 and Human Rights Council Resolution 6/28 to the General
Assembly on 6 Aug. 2008, A/63/223.
214 Case law CML Rev. 2009
EU’s legal system, and even proclaiming its inward constitutionality, and by
failing to take any notice of the standard of international protection of those
same rights, the Court ultimately missed a great opportunity for advancing the
EU’s policy on human rights as a whole, which has been traditionally centred
on the respect and promotion of the international rule of law worldwide.2 In the
commentary in section 5 of this case note, it will be argued that a more bal-
anced reasoning would have been more appropriate and possibly even more
effective in testing the applicants’ allegations of breach of fundamental rights.
2. The background to the Court’s judgment
The case concerns the annulment of a Council regulation adopted in order to

give effect, within the Community, to a Council Common Position3 aimed at
the implementation in the space of the European Community of a number of
United Nations Security Council Resolutions (1267 of 1999, 1333 of 2000 and
1390 of 2002) adopted in connection with the fight against international terror-
ism, and specifically aimed at the freezing of funds belonging to certain per-
sons and entities associated with Usama bin Laden, the Al-Qaeda network and
the Taliban.
On 21 September 2005 the Court of First Instance (CFI) rejected the actions
brought respectively by Mr Kadi and Al Barakaat, and Mr Yusuf against the
Council and the European Commission in relation to Regulation (EC)
No. 881/2002 of 27 May 2002 imposing restrictive measures directed against
certain persons and entities associated with Usama bin Laden, the Al-Qaeda
network and the Taliban, in so far as that act related to them.4 Although the
2. Cf. Art. 2(5) TEU (Lisbon version) O.J. 2007, C 306/1: “In its relations with the wider
world, the Union shall uphold and promote its values and interests and contribute to the protec-
tion of its citizens. It shall contribute to … the protection of human rights … as well as the strict
observance and the development of international law, including respect for the principles of the
United Nations Charter”. For a recent illustration see the EU Presidency declaration on the
behalf of the EU of 11 Aug. 2008 following the execution of Mr Medellin, inviting – inter alia
– the US authorities at both federal and Texas State level to take the necessary legislative mea-
sures to give appropriate effect to the decisions of the International Court of Justice (12431/08
(Presse 232). For a critical appraisal of EU human rights policy in its external relations Leino,
“The journey towards All that is Good and Beautiful: Human Rights and ‘Common Values’ as
Guiding Principles of EU Foreign Relations Law”, in Cremona and de Witte (Eds.), EU
Foreign Relations Law – Constitutional Fundamentals (Hart, Oxford and Portland, 2008),
259. On the relation of EU and international human rights law, Ahmed and de Jesús Butler, “The
European Union and General Human Rights: An International Law Prespective”, 17 EJIL (2006),
772.
3. Council Common Position 2002/402/CFSP (O.J. 2003, L 53/62).
4. Case T-306/01, Yusuf and Al Barakaat International Foundation v. Council and Commis-
sion, [2005] ECR II-3533, T-315/01, Kadi v. Council and Commission, [2005] ECR II-3649.
Joined Cases C-402 & 415/05 P 215
judgment is well known and had been widely commented upon,5 a short
reminder is appropriate.
In support of their claims, the applicants had claimed that the Council was
not competent to adopt the contested Regulation and alleged the breach of
their fundamental human rights. The CFI rejected all the pleas in law raised by
the applicants. First, the Court ruled that the Council was competent to impose
economic and financial sanctions against individuals such as those envisaged
by the contested Regulation, on the combined basis of Articles 60, 301 and
308 EC, in direct connection with the Common Position 2002/402 adopted
under the Common Foreign and Security Policy (CFSP). Secondly, the Court
of First Instance decided to frame the alleged breach of the applicants’ funda-
mental rights within a broader assessment of the relationships between United
Nations law and legal orders of the Community and its Member States. For
that purpose, the Court decided to look first for the basis of its competence to
perform a judicial review of acts implementing a Security Council resolution,
before turning to the merits of the alleged breaches of fundamental rights. The
CFI found that the EC was not a direct addressee of the Security Council Res-
olution 1267 of 1999, but it was nevertheless bound to it by operation of Arti-
cle 307 EC.6 For that reason the CFI declined its jurisdiction with the notable
exception for the case that the Regulation would violate peremptory norms of
international law.7 Nevertheless, it concluded that the freezing of funds pro-
vided for by the contested Regulation did not infringe the applicants’ funda-
mental rights, as these were not protected by jus cogens.
5. The decision was on the whole favourably commented among others by Tomuschat in
43 CML Rev. (2006), 537; von Arnauld, “UN- Sanktionen und gemeinschatflicher Grundrechts-
schutz”, 44 Arch. VR (2006), 201, and more critically, although from different perspectives,
among others by Conforti, “Decisioni del Consiglio di sicurezza e diritti fondamentali in una
bizzarra sentenza del Tribunale comunitario di primo grado”, 11 Dir. Un. Eur. (2006), 333;
Hörmann, “Völkerrecht bricht Rechtsgemeinchaft?”, 44 Arch. VR (2006), 267; Eeckhout,
“Community Terrorism Listings, Fundamental Rights, and UN Security Council Resolutions. In
Search of the Right Fit”, 3 EuConst (2007), 183; Ciampi, Sanzioni del Consiglio di sicurezza e
diritti umani (Giuffré, Milano, 2007), at pp. 295 et seq.
6. Kadi (CFI) cited supra note 4, paras. 193- 204. Prior to the CFI’s judgment, the question
whether the EC was directly bound by Security Council resolutions had been raised by A.G.
Jacobs in the Bosphorus case, para 35, but left unanswered. In the legal literature the possibility
of applying a similar de facto succession argument as that adopted by the ECJ in International
Fruit Company with regard to GATT (Joined Cases 21/72 & 24/72, [1972] ECR 1219) had been
raised but answered in the negative. Cf. Bohr, “Sanctions by the United Nations Security Coun-
cil and the European Community”, (1993) EJIL, 265; Eckhout, External Relations of the EU.
Legal and Constitutional Foundations (OUP, Oxford, 2004), p. 439; Nettesheim, “U.N. Sanc-
tions Against Individuals – A Challenge to the Architecture of European Union Governance”,
44 CML Rev. (2007), 585. See however the stimulating observations made on this issue by
Tomuschat, op. cit. supra note 5, at 543.
7. Kadi (CFI) cited supra note 4, para 230.
The applicants brought appeals against those judgments before the Court of
Justice, pleading both the incompetence of the Community to adopt the con-
tested Regulation and the violation of their fundamental human rights. In a
cross-appeal, the United Kingdom maintained that the Court of First Instance
erred in concluding that it was competent to consider the legality of the con-
tested Regulation in relation to jus cogens violations. The Netherlands, Spain
and France also intervened in the case in support of the Council. In the mean-
while Mr Yusuf withdrew his appeal, after having been removed from the UN
list on August 2006.
3. The Opinion of the Advocate General
Advocate General Poiares Maduro delivered identical Opinions on Kadi and

Al Barakaat respectively on 16 January and 23 January 2008.
With regard to the legal basis of the contested Regulation,8 the Advocate
General agreed with one of the arguments advanced by the Commission and
maintained that the CFI erred in law in founding the legal basis of the Regula-
tion also on Article 308, besides Articles 60 and 301. The Advocate General
observed that the only requirement of Article 301 is that the aim of the “urgent
measures” to be taken is to interrupt or reduce economic relations with third
countries, and that the Article does not regulate what shape the measures
should take, or who should be the target or bear the burden. Therefore the ref-
erence to Article 308 made by the CFI was, in his view, unnecessary and also
wrong, to the extent that the CFI construed it as a “bridge” between the EC and
the Second Pillar of the EU.
However, his analysis mainly focused on the jurisdiction of the Community
Courts to determine whether the contested Regulation breached fundamental
rights and on the latter’s content. The Advocate General challenged the exclu-
sion of jurisdiction by the Court of First Instance to fully review the Regula-
tion under reference. In particular, he contested the argument of the Council,
the Commission and the United Kingdom that measures taken by the Commis-
sion for the implementation of Security Council resolutions should as a matter
of principle enjoy immunity from judicial review. His main argument was that
the Court should not confine its assessment to the violation of jus cogens, but
it should review the Regulation applying its settled case law and its normal
judicial standards on the protection of fundamental human rights, as part and
parcel of the Community constitutional legal order.9 The Advocate General
8. Opinion of the A.G., paras. 11–16.

9. Opinion of the A.G., paras. 42–43.
Joined Cases C-402 & 415/05 P 217
came to the conclusion that the applicants’ claims concerning the infringement
of their fundamental rights, in particular the right to be heard and the right to
effective judicial review, were well founded.
The Advocate General’s Opinion omitted any mention of the judgment by
the CFI in the OMPI case of 12 December 2006.10 In that judgment the Court
had affirmed the pre-eminence of the right to a fair hearing and annulled with
regard to the applicant a Council decision implementing Regulation (EC)
2580/2001, which had established specific restrictive measures directed against
certain persons and entities with a view to combating terrorism and which had
set up an autonomous EC list of suspected terrorist individuals and groups.11
Although that case presented far less difficulties, because no UN listing was
involved, since the Regulation was adopted by the EC under the general head-
ing of SC Resolution 1373/2001 – which branded all terrorist activities as a
threat to international peace and security, but did not establish any further spe-
cific sanction – still the Advocate General could have pointed at the fact that a
different treatment of the two sets of sanctions, which had the same material
consequences for the targeted individuals and entities, was hard to justify in
the light of the fundamental principle of judicial review.
Even more puzzling was the Advocate General’s reluctance to engage in
any manner whatsoever with the international standards of protection of human
rights. Nevertheless, the Advocate General expressly encouraged the Court to
annul the contested Regulation also as an instrument for a possible “successful
challenge” to the current unsatisfactory review mechanism established by the
UN 1267 Committee. In that context he recalled that such an outcome had
already been contemplated by the Analytical Support and Sanctions Monitor-
ing Team of the UN Sanction Committee.12 Conscious of the impact of an
annulment decision by the ECJ on the Community’s international relations, the
Advocate General closed with the conciliatory remark that if there had been “a
genuine and effective mechanism of judicial control by an independent tribu-
nal at the level of the United Nations, this might have released the Community
from the obligation to provide for judicial control of implementing measures
that apply within the Community legal order”.13
10. Case T-228/02, Organisation des Modjahedines du peuple d’Iran, [2006] ECR II-4665.
11. O.J. 2001, L 344/70.
12. Opinion of the A.G., para 38, referring in particular to the Second Report of the Monitoring
team, UN Doc. S/2005/83, para 58, and to the Annex I to the Sixth Report (UN Doc. S/2007
/132).
13. Opinion of the A.G., para 54.
4. The Judgment of the Court
4.1. The legal basis of the contested Regulation
The ECJ devoted a substantial part of its decision (paras. 121–236) to the issue
of the legal basis of the Regulation. The Court’s attention is understandable for
a number of reasons. First, the contested Regulation was directed against indi-
viduals and non-State entities and not, as in previous cases such as Bosphorus14
Centro-Com,15 Ebony,16 Racke17or Dorsch Consult18 against third countries and
only indirectly against individuals linked to them. A second reason might be
seen in the alert interest of EC institutions and Member States in exploring the
scope of Articles 60 and 30119 pending the entry into force of the Treaty of Lis-
bon with the new Article 215 TFEU, which in its paragraph 2 spells out the EU
competence to adopt restrictive measures also against natural or legal persons
and groups or non-State entities.20 Third, the case at hand gave the Court
another opportunity, shortly after the recent “Proliferation of light weapons”
14. Case C-84/95, Bosphorus Hava Yollari ve Ticaret AS v. Minister for Transport, Energy
and Communications, Ireland and the Attorney General, [1996] ECR 3953. See Eeckhout,
op. cit. supra note 6, at p. 426.
15. Case C-124/95, The Queen ex parte Centro-Com Srl v. HM Treasury and Bank of Eng-
land, [1997] ECR I-81. See annotation by Vedder and Folz in 35 CML Rev. (1998), 209 ; see also
Eeckhout, op. cit supra note 6, at p. 431.
16. Case C-177/95, Ebony Maritime SA and Loten Navigation Co. Ltd. v. Prefetto della Pro-
vincia di Brindisi and Others, [1997] ECR I-1111. See annotation (together with Centro-Com)
by Vedder and Folz, op. cit. supra note 15; see also Eeckhout, op. cit supra note 6, at p. 428.
17. Case C-162/96, Racke, [1998] ECR I-3655.
18. Case C-237/98 P, Dorsch Consult Ingenieurgesellschaft mbH v. Council and Commis-
sion, [2000] ECR I-4549.
19. The two Articles were inserted in the EC Treaty in 1992 in order to permit the transla-
tion into EC law of the measures decided in the framework of the CFSP. Art. 301 reads: “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 a qualified majority on a proposal from the Commission”.
20. Art. 215 (ex Art. 301 EC): “1. Where a decision, adopted in accordance with Chapter 2
of Title V of the Treaty on European Union, provides for the interruption or reduction, in part or
completely, of economic and financial relations with one or more third countries, the Council,
acting by a qualified majority on a joint proposal from the High Representative of the Union for
Foreign Affairs and Security Policy and the Commission, shall adopt the necessary measures. It
shall inform the European Parliament thereof. 2. Where a decision adopted in accordance with
Chapter 2 of Title V of the Treaty on European Union so provides, the Council may adopt restric-
tive measures under the procedure referred to in paragraph 1 against natural or legal persons and
groups or non-State entities. 3. The acts referred to in this Article shall include necessary provi-
sions on legal safeguards”.
Joined Cases C-402 & 415/05 P 219
case (Commission v. Council, judgment of 20 May 200821), to assess the cross-

pillars tensions and coherence in the field of external relations for the time left
before the reshuffling of the entire institutional framework provided for in the
Lisbon Treaty.
As was mentioned above, the CFI had maintained that it had been legitimate
for the Regulation to be adopted on the joint basis of Articles 60, 301 and
308 EC, the recourse to the last provision being justified in order to attain the
objectives of both the EC Treaty on the common market and the EU Treaty on
external relations.22
In his first ground of appeal Mr Kadi claimed that Articles 60 and 301 could
not constitute even a partial legal basis for the contested Regulation, because
the latter was directed against individuals and non-State entities not linked
with any third country, contrary to the clear wording of those Articles. In par-
ticular Mr Kadi contested the construction of Article 301 as a “bridge” to the
Second Pillar of the EU Treaty, maintaining that that Article in no circum-
stances includes the power to take measures intended to attain an objective of
the EU Treaty. Finally he argued that recourse to Article 308 was also unavail-
able in order to attain an objective extraneous to those of the EC Treaty.
Opposing Kadi’s first two arguments, the Council, and the governments of
France, the UK and Spain, albeit with some nuances, all stated that the raison
d’être of Article 301 is precisely to give the Community the power to adopt
restrictive measures intended to attain an objective of the EU Treaty, and that
recourse to Article 308 was in any event appropriate to dispel doubts whether
the powers envisaged by Articles 60 and 301 were sufficient to impose eco-
nomic and financial sanctions on individuals and non-State entities without
any specific link to any specific third country. The Council and the intervening
governments, however, disagreed with the CFI’s finding that Article 308 EC
could also be used in order to attain an objective external to the Community,
such as one related to the CFSP.
On the basis of the latter line of arguments the Court could have given a
short shrift to Kadi’s first ground of appeal, amending on the way the error in
law committed by the CFI with regard to the scope of Article 308. It was the
Commission which, to a considerable extent, made things more difficult for
21. Case C-91/05, Commission v. Council, judgment of 20 May 2008, nyr. The Court
annulled Decision 2004/833/CFSP of 2 Dec. 2004 implementing Joint Action 2002/589/CFSP
with a view to a European Union contribution to ECOWAS in the framework of the Moratorium
on Small Arms and Light Weapons. The Court found that the Decision had encroached upon
Community competences, in particular upon the Commission’s competence on development
cooperation policy and therefore infringed Art. 47 TEU.
22. For some critical remarks on the CFI’s arguments cf. Ciampi, op. cit. supra note 5, at
pp. 212 et seq.
the Court, because, having reconsidered its point of view, it now argued first
that Articles 60 and 301 EC were a sufficient legal basis for the adoption of the
Regulation or, alternatively, that the EC Treaty’s Articles dealing with the com-
mon commercial policy and the free movement of capital and payments were
applicable as well. In the third alternative, the Commission maintained that, if
recourse to Article 308 were upheld, then that would have to be the sole legal
basis. The Court was therefore obliged to confront in depth the Commission’s
arguments and this might be another reason for the lengthiness of this part of
the decision.
As for the Commission’s first argument, that, as we have seen, found the
Advocate General’s backing, the Court observed that the interpretation given
by the Commission of the “third country” test of Articles 60 and 301, accord-
ing to which the mere presence of persons or entities in a third country or their
association therewith would suffice, goes against the wording of those provi-
sions and would confer on them “an excessively broad meaning”.23 As for the
Commission’s second argument, the Court dismissed it, by recalling that the
choice of the legal basis for any Community measure must rest on judicially
assessable, objective factors, taking into particular account the aim and the
content of the measure.24 The purpose and content of the common commercial
policy provided for in Article 133 is to promote, facilitate and govern interna-
tional trade, as is made clear from the wording of its first paragraph. The fact
that a regulation intended to combat international terrorism provides inter alia
a series of restrictive measures of an economic and financial kind, can not shift
the parameters of interpretation. Neither can the provisions of the EC Treaty
on free movement of capital supply the necessary legal basis. On the one hand
Article 60(1) can not be read in isolation from Article 301. On the other hand
the restrictive measures imposed by the contested Regulation do not fall within
the categories of Article 57(2), the only other Article providing for restrictive
measures in that chapter.
With regard to the Commission’s third argument, though, the Court had to
engage in a subtler reasoning. The fact that Articles 60 and 301 can not be held
as a sufficient legal basis of the contested Regulation, because of their “limited
ambit ratione materiae” (here one would have rather expected the Court to say
“ratione personae”), does not mean that the Regulation does not fall under the
legitimate scope of those Articles at all. The scope of those Articles is not just
to translate into EC law the restrictive measures of an economic and financial
nature decided on under the CFSP, but, at a deeper level of analysis, their
“implicit underlying objective” is that “of making it possible to adopt such
23. Judgment, para 168.

24. Ibid., para 182.
Joined Cases C-402 & 415/05 P 221
measures through the efficient use of a Community instrument”.25 In the

Court’s view it is exactly that objective which may be regarded as constituting
an objective of the Community for the purpose of Article 308 EC.
4.2. Protection of human rights
In comparison, the part of the judgment dealing with the question of whether
the contested Regulation infringes the appellants’ fundamental rights looks
rather “run of the mill”, despite the fact that the Advocate General qualified it
“the principal aspect of the case”.26 Before assessing the alleged violations of
the rights of property, the right to be heard and the right to effective judicial
review, the Court recalled that the EC legal order is based on the rule of law
and that fundamental rights form an integral part of the general, indeed consti-
tutional, principles of EU law. Consequently the Court stated that a “constitu-
tional guarantee stemming from the EC treaty as an autonomous legal system”
cannot “be prejudiced by an international agreement”,27 regardless of whether
those international obligations derive from the UN Charter or from any other
treaty. This categorical statement led the ECJ to the conclusion that the CFI
erred in law when it ruled that the contested Regulation aiming at the imple-
mentation of a Security Council resolution adopted under Chapter VII of the
United Nations Charter should in principle be immune from judicial review. At
any rate, the Court made the point that the annulment of a regulation imple-
menting a UN Security Council resolution because of its incompatibility with
EC constitutional norms does not challenge the primacy of that resolution
under international law.28
As for the content of the rights invoked, the ECJ focused on the principle of
effective judicial protection, as a general principle of Community law arising
from the common constitutional traditions of Member States, and enshrined in
Articles 6 and 13 ECHR. The Court acknowledged that the specific mecha-
nism established by the contested Regulation necessarily implies a restriction
of the rights of defence, since the Community authorities cannot be required to
communicate the grounds giving rise to the restrictive measures to the persons
or entities concerned, before the name of that person or entity is included in the
list for the first time. To state otherwise would impair the very objective pur-
sued by that Regulation, which is based on a “surprise effect” and must apply
with immediate effect. However, according to the Court, the principle of

26. A.G.’s Opinion, para 41.
effective judicial protection requires the Community authorities to communi-

cate the grounds of their decisions as swiftly as possible in order to enable the
person or entity concerned to consider exercising their right to bring an action.29
The Court recognized that “overriding considerations” related inter alia “to
the conduct of the international relations of the Community or of its Member
States” may oppose the disclosure of certain documents. Nonetheless, the
Court found, relying almost verbatim on the 1996 Chahal v. United Kingdom
decision by the European Court of Human Rights (ECtHR),30 that it was its
own task, in the course of the judicial review, to adopt techniques apt to accom-
modate security concerns about the nature and sources of information taken
into account in the adoption of the act concerned with the need to provide
“a sufficient measure of procedural justice”.31 The Court observed that the con-
tested Regulation does not provide for a procedure for communicating the evi-
dence justifying the inclusion of the names of the persons concerned in the list,
and that no step had been taken in that direction by the Council in the specific
case. The Court was therefore unable to undertake any review of the lawful-
ness of the Regulation, and also for that reason it found that the right to an
effective judicial protection had been infringed.
Further, the ECJ discussed the right to property, also qualified as a general
principle of Community law. It is worth mentioning that with regard to the
right to property, like the right to effective judicial protection, the Court relied
on the jurisprudence of the ECtHR. The Court’s main purpose was to verify
whether the contested Regulation amounted to “disproportionate and intolera-
ble interference” impairing the very core of the right to property. On the one
hand, the Court conceded that the restrictive measures implied by the Regula-
tion can in principle be justified in consideration of the general interest of the
fight against the threats to international peace and security posed by acts of
international terrorism. Nevertheless, the Court found that the opportunity to
bring the case before the competent authorities constitutes a procedural require-
ment which is inherent in Article 1 of Protocol 1 to the ECHR.32 The acknowl-
edgement that Mr Kadi had been deprived of such an opportunity led the Court
to conclude that the right to property had also been infringed.33
As a consequence of the above, the ECJ annulled the Council Regulation
881/2002 insofar as it freezes Mr Kadi and Al Barakaat’s financial assets,

30. ECtHR, Chahal v. United Kingdom, [1996] ECHR-V, 1831, at para 131.
31. Judgment, para 344. Interestingly, the original wording of the ECtHR used the adjective
“substantial”.
32. The ECJ referred to the ECtHR’s judgment in the Case, Jokela v. Finland, [2002] ECHR-
IV, 1, at para 45.
33. Judgment, paras. 368–369.
Joined Cases C-402 & 415/05 P 223
deciding however to maintain the effects of the Regulation for a maximum

period of three months, in order to allow the Council to remedy the infringe-
ments found.
5. Comments
5.1. The legal basis
Although the main focus of the present note is the very topical issue of the pro-
tection of fundamental human rights in the EC legal order when confronting
UN binding resolutions, a brief comment on the part of the judgment dealing
with the legal basis issues is opportune. As is apparent from the illustration
above, that part of the judgment is a remarkable tour de force in order to save
the viability of Article 60 and 301 as instruments of coordination with CFSP in
the highly sensitive matter of anti-terrorism,34 pending the completion of the
procedure of ratifications of the Lisbon Treaty.
While the reasoning of the Court is sufficiently coherent, there is a hitch
which demands some attention. As we have seen, when examining and dis-
missing the Commission’s thesis that Articles 60 and 301 could have been
used on their own, the Court rejected that argument on a rather literal interpre-
tation of the latter Article, without entering into an analysis of the purpose of
that provision which could have led the Court to construe the norm as encom-
passing also the kind of sanctions under review. On the contrary, when discuss-
ing the invocation of Article 308 as a further legal basis, the Court inferred an
implicit objective of Article 301 – the “efficient use” of the Community instru-
ments to give effect to decisions under the CFSP – so as to make possible a
resort to Article 308.
Even if the “efficient use” argument is in itself irreproachable, being an
expression of the fundamental principle of effet utile and having a long lineage
in the Court’s jurisprudence,35 its use at that stage of arguments leaves a vague
34. On the EC legal basis for such measures cf. Kuijper, “Implementation of binding SC
resolutions by the EU/EC” in de Wet and Nollkaemper (Eds.), Review of the Security Council by
Member States (Intersentia, Antwerpen, 2003), p. 39, for whom it could even be possible to
argue the de facto succession of the EC to its Member States in the competence to implement
binding UN sanctions in the fields of financial and economic relations (at p. 42). More prudent
is the assessment by Eeckhout, op. cit. supra note 6, at p. 439. There have been however some
critical voices on the advisability of involving the EC in the specific issue of antiterrorism mea-
sures, cf. Garde, “Is it really for the European Community to implement anti-terrorism UN Secu-
rity Council Resolutions?”, 65 CLJ (2006), 284.
35. The rationale, if not the phrasing goes back to Case C-8/73, Massey-Ferguson, [1973]
ECR 906. On the interrelation between effet utile, implied powers and Art. 308, see Seyr, Der
impression of contrivance.36 The expedient character of the reliance on Article

308 is made even more obvious from the somewhat cavalier way in which the
Court dealt with one of the indispensable preconditions for applying Article
308, namely the demonstration that the lack of Community action would lead
to distortion of competition between Member States and possible infringe-
ments of EC freedoms. In this regard the Court confined itself to the rather
anodyne observation that “if economic and financial measures such as those
imposed by the contested regulation…were imposed unilaterally by every
Member State, the multiplication of those national measures might well affect
the operation of the common market”.37
In conclusion, it seems that the Court was conscious of the advisability to
draw at any event Article 308 into the picture, not least because of the politi-
cally welcomed side-effect of the backing of the European Parliament in such
a sensitive matter, but refrained from leaning the Community’s competence
too heavily against that Article’s shaky shoulders.
5.2. EC inward constitutionalism vs. international law’s discourse
As was stated in the introduction, the part of the judgment dealing with the
validity of the contested Regulation in the light of the protection of fundamen-
tal human rights gives rise to mixed feelings. On the one hand, one can not but
welcome the unbending commitment of the European Court of Justice to the
respect of fundamental human rights, but on the other hand the relatively high
price, in terms of coherence and unity of the international legal system, that
had to be paid in order to arrive at the conclusion of the invalidity of the con-
tested Regulation, is worrying. Of course, one might argue that the ECJ was all
too willing to pay that price, and that it could have even felt it as no price at all,
but as a golden opportunity to bring a step further the proclaimed “constitu-
tionalization” and autonomy of the Community legal system.
The Kadi judgment is a direct, if late, offspring of the van Gend en Loos and
Costa/Enel jurisprudence, and, without wanting to sound too rhetorical, one
might even venture to say that similarly to those decisions it will be a landmark
in the history of EC law. For, in unmistakable terms, the Court maintained that
every international agreement, even one which is previous in time, universal in
character and political in scope, like the UN Charter, can not impinge on the
Effet Utile In Der Rechtsprechung Des Europäischen Gerichtshofs (Duncker & Humblot, 2008)
at pp. 106 et seq., who comes to the conclusion that in the Court’s view the effet utile argument
is an autonomous hermeneutical method available also for competence purposes (p. 275).
36. Similarly, cf. d’Argent, “L’arrêt Kadi: le droit communautaire comme droit interne”,
(2008) Journal de droit européen, 265 at 266 “raisonnement rélativement artificiel”.
Joined Cases C-402 & 415/05 P 225
constitutional Community order. In this way the Court definitely broke the
shackles of Article 307, which had consciously been laid on the EC by the
State parties in order to keep it anchored in the shallow waters of the archipel-
agos of international treaty law, and happily sailed off in uncharted waters.
One might argue that the break was limited to a very particular case, that of
a Security Council resolution, whose legitimacy under international law gave
many reasons for concern.38 Indeed, the Court made absolutely clear that it did
not want to enter into any discussion on the international legality of the reso-
lution, by saying that “it is not for the Community judicature … to review the
lawfulness of such a resolution adopted by an international body.”39 In its
eagerness to display its self-restraint, the Court went even further, by discard-
ing “any challenge to the primacy of that resolution in international law”.
However, the Court’s position can be faulted on two grounds.
First, this ostentatious deference is misplaced in the present context. One
can concede that the Court was right in explicitly dismissing Article 297 as a
possible shield for Member States.40 That Article enables Member States to
derogate from EC obligations, when that derogation is required “to carry out
obligations [they have] accepted for the purpose of maintaining peace and
international security”, but the Court had already made clear in its previous
jurisprudence that the Article does not recognize a “reserve of sovereignty”,
but it is just one exception among others, unavailable when conflicting with
obligations adopted by the Community.41 Vice versa, the cursory way in which
the Court, contrary to the CFI’s view, disposes of Article 307,42 dismissing by
the same token the Centro-Com precedent,43 verges on the self-righteous.
38. Cf. among others Fassbender, “Targeted Sanctions and Due Process”, 3 International
Organizations Law Review (2006), 437; van den Herik, “The Security Council’s Targeted Sanc-
tions Regimes: In Need of Better Protection of the Individual”, 20 LJIL (2007), 797; Bothe,
“Security Council’s Targeted Sanctions against Presumed Terrorists”, 6 Journal of International
Criminal Justice (2008), 541 with further bibliography, and cf. also the authors quoted in note
62 infra.
40. Ibid., paras. 302–303
41. Cf. Eeckhout, op. cit. supra note 6, at p. 443, and the Centro-Com judgment, cited supra
note 15, para 27: “[W]hile it is for Member States to adopt measures of foreign and security pol-
icy in the exercise of their national competence, those measures must nevertheless respect the
provisions adopted by the Community in the field of the common commercial policy”. For that
same perspective cf. Canor, “Can Two Walk Together, Except They be Agreed? The Relationship
between International Law and European Law: The incorporation of United Nations sanctions
against Yugoslavia into European Community law through the perspective of the European
Court of Justice”, 35 CML Rev. (1998), 137, at 175.
42. Judgment, para 304: “Article 307 may in no circumstances permit any challenge to the
principles that form part of the very foundations of the Community legal order.”
43. As will be recalled, in Centro-Com (paras. 56–60) the Court had implicitly recognized
that Art. 234 EC (now Art. 307) could allow derogations even from primary law, in that instance
The Court could and should have more attentively looked into both the
restraints imposed by and the limits of Article 307, with regard to the obliga-
tions incumbent on EU Member States from a previous treaty, but, as we will
see later, this would not have prevented it, had it wished to do so, from making
its own assessment of the legality and primacy of the UN resolution under
Article 103 of the UN Charter.
Secondly, as a matter of fact, the respect paid to the primacy of the Security
Council resolution under international law does not amount to much more than
lip-service. It is noticeable that, besides the short and oblique passage under
Article 308 previously referred to, the Court carefully avoided touching explic-
itly upon the topical question of the opposing obligations under UN law and
under Community law, to which the Member States now find themselves sub-
ject because of the Court’s decision. The silence of the Court can be instruc-
tively compared with the opinion of the Advocate General, who had clearly
maintained that, “without prejudice to the application of international rules on
State responsibility” Member States would be barred from enacting domestic
statutes giving effect to Security Council resolutions to the extent that those
norms would conflict with EC fundamental principles.44 Now, in the light of
the above, it would be artful to infer from the narrow scope of the ECJ’s deci-
sion the conclusion that every Member States would still be free to comply
under its domestic order with the relevant Security Council resolution, should
it decide to do so. The CFI had already decidedly discarded such possibility
even for the sake of argument, and Tomuschat had rightly commended the
CFI’s refusal to engage in such “finasseries”.45
My point here is not to criticize the Court for having “defended” in the pres-
ent occasion the EC legal order, by narrowly sticking to it. Some merits could
even be detected in such a posture, since it tries to avoid possible clashes with
other judicial bodies or international organs. My point is rather to direct atten-
tion to the fact that the judgment under review is just the latest in a series, in
which the ECJ, instead of making rational use of arguments of international
law, opening itself up to a dialogue with other international bodies and tribu-
nals, promoting a model of international “open network structures”,46 has
from then Art. 113 EC, if the Court were satisfied that the previous international agreement had
required – and not only enabled – a Member State to adopt a measure which appeared to be con-
trary to Community law . For a favourable appraisal of such a view cf. Pavoni, “UN Sanctions
in EU and National Law: The Centro-Com Case”, 48 ICLQ (1999), 582.
44. A.G. Maduro’s Opinion, paras. 30 and 39.
45. Cf. Tomuschat, op. cit. supra note 5, at 545. For a different view cf. Eeckhout, op. cit.
supra note 5, at 192, for the statement that the CFI did not and could not “prohibit” Member
States from continuing to apply those measures under their UN obligations.
46. For the meaning and use of the concept cf. among others Nettesheim, op. cit. supra note
6, at 580.
Joined Cases C-402 & 415/05 P 227
increasingly displayed its determination to reduce as much as possible the

residual role of international law, and consequently the margin of manoeuvre
of Member States, in the realm of Community law.
As is well known, the Court avails itself of various devices to that end, the
most notable of which is the “direct effect” doctrine. This is not the appropri-
ate place to dwell on the subject, but what is worrisome is not only the Court’s
erratic jurisprudence,47 but more fundamentally the unwarranted extension of
that doctrine from the realm of Community law to that of international law as
such.48 “Self-contained” judgments such as Kadi, and with the due distinctions
the recent preliminary ruling in Intertanko,49 do not bode well for the future of
customary international law either, which up until now seems to have escaped
the ECJ’s wrath. Even if in the Kadi judgment the Court pays a generic tribute
47. See Lenaerts and Corthaut, “Of Birds and Hedges: The Role of Primacy in Invoking
Norms of EU Law”, 31 EL Rev. (2006), 287, at for the intriguing remark that the ECJ and the
CFI were, on the contrary, ready to allow individuals to rely on provisions of a whole series of
agreements concluded by the EC with third countries, “even though most of the provisions relied
on were arguably no more clear, precise and unconditional than those of, for instance, the
GATT”. By the same authors, see also “Towards an Internally Consistent Doctrine on Invoking
Norms of EU Law” in Prechal and van Roermund (Eds.), The Coherence of EU Law (OUP,
Oxford, 2008), p. 495, at 497.
48. Cf. Nollkaemper, “The Direct Effect of Public International Law” in Prinssen and Schrau-
wen (Eds.), Direct Effect – Rethinking a Classic of EC Legal Doctrine (Europa Law Publishing,
Groningen, 2004), p. 155, at 167 for the observation that “States generally do allow for internal
effects by voluntary acceptance of a perceived, even if unarticulated and certainly unenforcea-
ble, obligation under international law”, and at p. 179 for the conclusion that there is no justifi-
cation to adopt in international law a concept as narrow as that prevailing in EC law, and that
“the concept of direct effect involves all cases where national courts, or indeed the European
Court of Justice, apply rules of international law that are not transformed in rules of national law
or EC law”. The doctrine, as originally exposed in International Fruit Company, cited supra
note 6, para 27, was even aggravated by the further reference not so much to the object and scope
of the Treaty, but even to its “spirit and structure”. This further requirement, which the subse-
quent jurisprudence seemed to have disposed of, has been recently resuscitated by the Court in
the form of an even vaguer notion of the “nature and broad logic” of the treaty, which could bar
the Court from recognizing direct effect to any norm contained in it. Cf. Case C-344/04, The
Queen on the application of International Air Transport Association, European Low Fares Air-
line Association v. Department for Transport, [2006] ECR I-403, para 39.
49. In Intertanko (Case C-308/06, the Queen on the application of International Association
of Independent Tanker Owners (Intertanko) and others v. Secretary of State for Transport, judg-
ment of 3 June 2008, nyr.) the Court arrived at the right conclusion that the United Nations Con-
vention on the Law of the Sea of 1982 did not stand in the way of the validity of a directive on
ship-source pollution and on the introduction of penalties for infringements, but not on the plain
argument that the Convention’s provisions do not prohibit more severe domestic rules, but on the
rather odd argument of the lack of direct effect of the UN Convention inferred from its “broad
logic” (at para 64). The conclusion is all the more striking, in the light of the Opinion of the A.G.
Kokott, who had convincingly demonstrated that the UNCLOS, whose applicability the A.G.
had taken for granted, did not preclude the validity of the contested directive. Case C-308/06,
Opinion of A.G. Kokott, delivered 20 Nov. 2007, para 94.
to international law by recalling Poulsen50 and Racke,51 it seems probable,

especially in the light of the still existing uncertainties on the ultimate basis of
obligation for the EC to respect that corpus of norms,52 that customary interna-
tional law will become the Court’s next casualty, should it persist on its ill-con-
ceived doctrine of direct effect.53
5.3. Were there alternative options?
In its quest for the inner coherence of the constitutional Community order and
the Verabsolutisierung of its autonomy, the Court disregarded some alternative
options. The most radical option, of course, would have been that of contest-
ing the legality of the Security Council resolution. Despite the apparent bold-
ness of such venture, it was paradoxically its own previous jurisprudence on
the direct effect of international norms which could have offered the Court the
opportunity to express its opinion on the legality of the Security Council’s res-
olution. If, as we have seen, in the European Court of Justice’s view it is the
direct effect of an international norm which permits it to enter into EC law, and
even to test the legality of a secondary EC norm, one does not see why the
Court could not have used the same argument of direct effect, only inverting
the direction, in order to affirm the unlawfulness of that same norm under
international law. Interestingly this possibility had not been excluded by the
Commission, which had maintained that only two reasons may justify not
giving effect to an obligation to implement resolutions of the Security Council
such as those at issue, “whose strict terms leave the Community authorities no
discretion in their implementation”. The Commission identified these two
reasons as being first contrariety to jus cogens and second the adoption by the
Security Council of an act ultra vires, by which term, in the Commission’s
50. Case C-286/90, Poulsen and Diva Navigation, [1992] ECR I- 6019.
52. It is well known that the Court has never clarified on which basis it considers itself bound
by the rules of customary international law, either because customary international forms part of
EC law or through the device of general principles recognized by Member States. On the rela-
tionship between EC law and international customary law in the perspective of the ECJ, cf. Puis-
sochet, “La place du droit international dans la jurisprudence de la Cour de Justice des
Communautés européennes” in Scritti in onore di Giuseppe Federico Mancini, Vol. II, (Giuffrè,
Milano, 1998), p. 779; Gianelli, Unione europea e diritto internazionale consuetudinario (Giap-
pichelli, Torino, 2004), pp. 79 et seq. with further bibliography.
53. For a provocative pleading for a radical review of the whole doctrine of direct effect on
the part of the ECJ, cf. Prechal, “Direct Effect Reconsidered” in Prinssen and Schrauwen, op. cit.
supra note 48.
Joined Cases C-402 & 415/05 P 229
view, also a Security Council resolution in breach of fundamental human rights

could be subsumed.54
The Court made clear from the outset that it would have none of this.
Saying that it was not going to review the legality of the SC resolution under
international law, it added “even if that review were to be limited to examina-
tion of the compatibility of that resolution with jus cogens”.55 After that stern
statement, the Court briefly elaborated its position, by refuting in the first place
the Commission’s assumption of the lack of any discretion of UN Member
States, or for that matter of EC institutions, in applying the Security Council’s
resolution. Without any reference to either jurisprudence or doctrine, the Court
affirmed that Security Council’s resolutions adopted under Chapter VII “are to
be given effect in accordance with the procedure applicable in that respect in
the domestic legal order of each member of the United Nations”, and that
therefore any judicial review of the internal lawfulness of the domestic act
implementing the Security Council’s resolution can not be excluded in princi-
ple.56 This position marks a significant departure from the settled jurispru-
dence of consistent interpretation, by which the Court, in order to subdue to a
certain extent the lack of direct effect of an international norm, gives instruc-
tion to the domestic judicial authorities to adopt an interpretation in accor-
dance as far as possible with “the wording and purpose” of the international
norm.57
In my view the issue would have deserved a far more attentive treatment by
the Court. As is well known, the question of the direct effect of Security Coun-
cil’s coercive measures not involving the use of force under Article 41 of the
UN Charter is far from having been settled.58 It is somewhat curious that the

56. Ibid., paras. 298–299.
57. Cf. mainly but not solely with regard to WTO rules Case C-53/96, Hermès, [1998] ECR
I-3603, para 28; Joined Cases C-300/98 & C-392/98, Dior and Others, [2000] ECR I-11307,
para 47; Case C-89/99, Schieving-Nijstad vof and Others, [2001] ECR I-5851, para 54; Case
C-49/02, Heidelberg Bauchemie GmbH, [2004] ECR I-6129, para 20; Case C-245/02, Budvar,
[2004] ECR I-10989, para 42; Case C-431/05, Merck Genéricos-Produtos Farmaĉeuticos,
[2007] ECR I-7001, para 35. Although the hermeneutic principle is recalled in paras. 296–297
of the judgment, this does not seem to be much more than a rhetorical device, in order to more
vividly introduce the arguments militating for a different solution in the case under scrutiny.
58. For some different perspectives in European countries cf. Fox, Wickremasinghe, “UK
Implementation of UN Economic Sanctions”, 42 ICLQ (1993), 945; Jansen, “National Imple-
mentation of UN Sanctions Measures in the Netherlands”, 8 Humanitäres Völkerrechts (1993),
211; Lanfranchi, “La valeur juridique en France des resolutions du Coneil de sécurité”, (1997)
Annuaire français de droit international, 31 ; Cataldi, “Sull applicazione delle decisioni del
Consiglio di sicurezza nel diritto interno”, (1998) Riv. dir. int., 1022; Gowlland-Debbas, “Domes-
tic Implementation of UN Sanctions” in de Wet and Nollkaemper, op. cit. supra note 34, p. 63,
Court, which until now was generally believed to follow a monist approach in
relation to international law,59 and which in relation to Article 307 had never
enquired into the direct effect or lack of it of the previous agreement binding
Member States,60 in this occasion sharply turned to an uncompromising dual-
ist approach.61
Also unsettled in international legal literature, because of diverging inter-
pretations of Article 103 of the Charter, is the issue of a possible domestic judi-
cial review of the lawfulness of Security Council’s resolutions. For all its
weaknesses, the CFI’s approach had the merits of bringing the issue to the
fore.62 This could have been a major opportunity for the Court to better define
its view on the relationship between Community law and international law, but
also between the EC/EU and other international organizations.63 On the con-
trary the ECJ escaped the question through the seemingly facile, but ultimately
debatable assumption that the Security Council’s resolution did not bind the
EC as such, and contented itself with the affirmation of the fundamental char-
acter under EC law of the right of judicial review.
and the country reports in Gowlland-Debbas (Ed.), National Implementation of United Nations
Sanctions (Leiden, Nijhoff, 2004).
59. In the sense that it had always neglected the quest for any internal act of transposition of
the international rule, cf. C-181/73, Haegeman, [1974] ECR 449, paras. 5–6.
60. Cf. Case C-812/79, Attorney general v. Juan C. Burgoa, [1980] ECR 2787, para 10.
61. By “dualist approach” I do not merely refer to the finding by the Court of a lack of direct
effect of Security Council resolutions, but to its underlying orientation to international law,
which the present case brought to light. Cf. the perceptive words of Nettesheim, op. cit. supra
note 6, at 582, for whom “[r]egardless of its semantics to the contrary, the ECJ clearly considers
the Union as a closed system, which opens itself to legal acts from the outside only after thor-
ough controls”. Cf. the provocative but not unbefitting charge of “texanization” of the ECJ given
in a recent Panel discussion held at the NYU on 17 Sept. 2008 on the Kadi judgment (globalad-
minlaw.blogspot.com/2008/09/nyu-panel-discussion-on-kadi-judgment...) with an obvious ref-
erence to the US Supreme Court’s decision of 25 March 2008 in the Medellin v. Texas case,
552 U.S. – (2008).
62. Yusuf, cited supra note 4, at paras. 219 et seq. For a sympathetic view cf. Tomuschat,
op. cit. supra note 5, at 545. On the whole favourable to a domestic review of SC resolutions
impinging on individual human rights cf. de Wet and Nollkaemper, “Review of Security Coun-
cil Decisions by National Courts”, 45 German Yearbook of International Law (2002), 166, and
the volume edited by the same authors, op. cit. supra note 34; Schilling, “Der Schutz der Men-
schenrechte gegen Beschlüsse des Sicherheitsrates”, 64 Zeitschrift für ausländisches öffentli-
ches Recht und Völkerrecht (2004), 343; Payandeh, “Rechtskontrolle des UN-Sicherheitsrates
durch staatliche und überstaatliche Gerichte”, 66 Zeitschrift für ausländisches öffentliches Recht
und Völkerrecht (2006), 41; Cannizzaro, “A Machiavellan Moment? The UN Security Council
and the Rule of Law”, 3 International Organizations Law Review (2006), 189; Lavranos, “UN
Sanctions and Judicial Review”, 72 Nordic Journal of International Law (2007), 1.
63. In the words of d’Argent, op. cit. supra note 36, at 268, the silence of the ECJ with regard
to Art. 103 of the charter is “non seulement symptomatique, mais proprement assourdissant.”
Joined Cases C-402 & 415/05 P 231
On a closer look, however, it seems that on the point, the Court in principle
followed the Opinion of Advocate General, who had adopted a strict dualist
approach with regard to the relationship between UN law and domestic orders,
under which he expressly included the “municipal EC legal order”. Probably
in order to encourage the Court to take a similar stance, the Advocate General
had made the bold statement that “in certain legal systems, it seems very
unlikely that national measures for the implementation of Security Council
resolutions would enjoy immunity from judicial review”. Unfortunately, this
argument was neither adequately argued nor substantiated, at least if one had
to judge from the domestic case law quoted.64 Despite some generic statements
on the scope of the Security Council’s powers for the maintenance of peace
and international security and the need to “take due account” of the terms and
objectives of the resolutions concerned and of the relevant obligations under
the UN Charter,65 the ECJ does not seem to have been genuinely interested in
engaging in any enquiry of the possible limits of Security Council’s powers,
but rather in affirming once for all the supremacy of the constitutional EC
order.
And yet, the dualist approach defended by the Court could still have left
open some more moderate options. The first and most obvious of such options
would have been for the Court to reinforce its findings by taking into account
the status of international customary and treaty law with regard to the human
rights invoked, and especially the right to be heard. The argument made by the
Commission, and by the governments of France, the Netherlands and the UK,66
and on this aspect by the CFI according to which the rights invoked are by no
means absolute rights which can not in any circumstance be derogated, might
be correct, but it is irrelevant for our purpose.
The Court apparently did not want to engage in any discussion of jus cogens,67
but this did not inhibit it from adamantly referring to the human rights invoked
as being “constitutional” and “fundamental” in the EC order. One does not
clearly see why the Court could not have recognized, at least in principle, that
64. Not a single one of the decisions referred to from the German, Italian, Czech, Hungarian
and Polish Constitutional Courts bore the slightest relation to the question of the domestic imple-
mentation of a Security Council’s binding resolution. Rather they variously dealt with the effect
in Germany of an ECtHR judgment on parental guardianship, with the implementation of a bilat-
eral US-Italian executive agreement on serving a criminal judgment abroad, with the same mat-
ter in a Thai-Czech agreement, with an expulsion from the Czech Republic of an alien in danger
of torture, with a challenge of unconstitutionality of certain provisions of the Europe Agreement
between Hungary and the European Union, with the compatibility with the Polish Constitution
of the European arrest warrant.
67. Ibid., paras. 287 and 329.
same status under international law as well. It has been argued that a substan-
tive right to an effective remedy, as enshrined in Article 8 of the Universal
Declaration of Human Rights, whilst representing a necessary corollary for the
effective protection of human rights, might not have evolved into customary
law.68 However, the UN Human Rights Committee in its General Comment
No. 32, adopted in 2007 considered the right to a fair trial under Article
14 ICCPR as one which may not be subject to derogation, at least where this
would circumvent the protection of non-derogable rights.69 In the previous
General Comment No. 29 adopted in 2001 and dedicated to the notion of state
of emergency under Article 4, the same UN Human Rights Committee had
maintained that even in situations when derogation from Article 14 is permis-
sible, fundamental requirements of fair trial must be respected in case of pros-
ecution for criminal offences.70
Now, it is true that there is some debate whether the freezing of assets of
individuals listed in Regulation 881/2002 could be compared to a criminal
punishment, with the affirmative view based on the objective severity of the
sanction, but that would have been a further reason for the Court to directly
address the issue, instead of avoiding the discussion altogether.71
A quite opposite, and concededly unpalatable, option for the ECJ would
have consisted in upholding the Regulation contested, because of the
constraints of Article 307, and allowing the ECtHR, as the more “proper”
68. Cf. Provost, International Human Rights and Humanitarian Law (CUP, Cambridge,
2002), p. at 44.
69. CCPR/C/GC 32 (2007), paras. 6 and 59
70. CCPR/C/21/Rev.1/Add.11 (2001), para 15.
71. In its General Comment 32, at para 15, the HR Committee had enlarged the notion to
“sanctions that, regardless of their qualification in domestic law, must be regarded as penal
because of their purpose, character or severity”. For the affirmative view that the restrictive
measures under UN Security Council Res. 1267 fulfil the notion of “criminal” sanctions, cf. the
4th Report of the UN Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism, Scheinin, A/63/223 (6 Aug. 2008), para 16.
Cf. de Wet and Nollkaemper, op. cit. supra note 62, at 177; Cameron, “UN targeted sanctions,
legal safeguards and the European Convention on Human Rights”, 72 Nordic Journal of Inter-
national Law, 159. A different view was arguably adopted by the CFI in the OMPI case, cited
supra note 10, which held that certain restrictions on the right to a fair hearing are consistent
with the case law of the ECtHR “even in the more stringent context of adversarial criminal pro-
ceedings subject to the requirements of Article 6 of the ECHR” (at para 135). As the present case
note was in print, the HR Committee held in the Sayadi Vinek case (Appl. 1472/2006) that the
UN measures do not fit into the notion of criminal charge in the meaning of Art. 14(1) ICCPR
(CCPR/C/94/D/1472/2006, 9 Dec. 2008, paras. 10, 11). One may wonder to what extent an
affirmative statement by the ECJ with regard to this issue might possibly have influenced a dif-
ferent outcome. See also in this Review Halberstam and Stein, “The United Nations, the Euro-
pean Union, and the King of Sweden: Economic sanctions and individual rights in a plural world
order”.
Joined Cases C-402 & 415/05 P 233
court, to pronounce on the issue.72 Though, such a solution would have pre-
sented a major backlash, a major risk, and a major inconvenience. To begin
with the backlash, the ECJ would have obviously lost the opportunity to (re)
affirm the primacy of EC constitutional order under its guardianship. As for
the risk, it would have been more than dubious that the ECtHR would have
affirmed its competence ratione personae, in the light of the debatable prece-
dent of the Behrami and Saramati judgment of 30 May 2007.73 The end result
in the Kadi case would have possibly been a negative conflict of competence
of the two regional courts, a deplorable but in itself perfectly conceivable out-
come, which would have left open the option for each domestic court to inde-
pendently determine its own position towards the contested Security Council
Resolution and by consequence towards the EC Regulation. This solution,
however, would have been clearly unacceptable for a court as preoccupied as
the ECJ with the principle of the uniform application of Community law.74
Finally, even if the ECtHR had distinguished Behrami on the facts, and even
if the Bosphorus precedent75 had served as authority to assert the competence
of the ECtHR to review the legality of norms of a treaty complex which was
concluded with third States and before the entry into force of the ECHR
(a question on which I would like here to reserve my opinion76), a great
uncertainty would still have lingered on the consequences of an affirmative
72. Actually a claim has been filed before the ECtHR by Youssef Nada Ebada, after the Swiss
Federal Tribunal in Lausanne had rejected his claim on 14 Nov. 2007. The Federal Tribunal took
the view that, in spite of manifest shortcomings in the UN procedure for insertion in and removal
from the list, the Security Council’s measures can not be objected against by domestic courts.
73. As will be recalled, in that case the ECtHR declined its jurisdiction, because it decided to
impute to the UNMIK and KFOR a conduct which could have more persuasively be imputed to
the armed forces of some State parties in Kosovo; Appl. 71412/01 and 78166/01, Behrami v.
France and Saramati v. France, Germany and Norway.
74. Cf. Kujiper, op. cit. supra note 34, at 48, who criticizes the practice followed by Member
States of duplicating the provisions of the EC regulations implementing SC resolutions, as being
“clearly no longer acceptable nor in conformity with the law at the present juncture”. See on the
danger of fragmentation of Community law in these cases, in this Review, Kunoy and Dawes,
“Plate tectonics in Luxembourg: The ménage à trois between EC law, international law and the
European Convention on Human Rights following the UN ‘sanctions’ cases”.
75. As will be recalled, in that case the ECtHR declined its jurisdiction, by finding that the
level of protection of human rights in the EC was at least “equivalent” to that envisaged by the
ECHR. ECtHR, Bosphorus v. Ireland, [2005] ECHR-VI.
76. As is well known, the ECtHR has until now studiously avoided pronouncing on this ques-
tion. Some commentators, such as Eeckhout, op. cit. supra note 5, at p. 204, and Ciampi,
“L’Union européenne et le respect des droits de l’homme dans la mise en oeuvre des sanctions
devant la Cour europèenne des droits de l’homme”, (2006) Revue générale de droit international
public (2006), 86 have read the Bosphorus judgment as an implicit affirmation of such compe-
tence, but it could well be that the point was consciously left in abeyance by the ECtHR, which
decided to dismiss the case on other grounds.
decision of the ECtHR, because of the well-known limits of the effects of its
judgments. The inconvenience therefore would have been that in the end the
proceedings before the ECtHR might not necessarily have led to a reform of
the contested Regulation.
A more palatable option for the cause of international human rights law
would have been for the Court, while still proceeding from a strict dualist
approach, to have followed the path of the celebrated “Solange” jurisprudence
of the German Federal Constitutional Tribunal, also adopted by the ECtHR in
the same Bosphorus case previously referred to. It was the Advocate General
who had suggested to the Court this less drastic approach and to affirm its
jurisdiction only to the extent, and so long as the UN did not organize a judi-
cial or quasi-judicial system of review of the decisions of the Sanctions Com-
mittee. The Court was apparently reluctant to take this middle way. Only at the
end of the part of the judgment dealing with the infringement of fundamental
rights, and in a quite perfunctory way did the Court confront the argument of
the Commission, which had maintained that “so long as” under the UN system
of sanctions the individuals or entities concerned have an acceptable opportu-
nity to be heard through the administrative review mechanism, the Court
should not intervene. This positive wording of the “Solange” theory, bluntly
advanced by the Commission, was clearly unacceptable to the Court, with
regard to the current status of the UN review mechanism. However, through its
cursory dismissal of a procedure “still in essence diplomatic and inter-govern-
mental”,77 the Court missed once again a major opportunity to restate the prin-
ciple of the advisability, if not the duty, of states to provide all possible
diplomatic assistance for at least their nationals submitting a request for
removal from the UN list.78
The reasons why the Court did not really engage itself in a “Solange” dis-
course, despite the explicit, if opposite invitations by the Advocate General
and the Commission could be manifold. It is true that the adoption of such a
formula by the ECtHR in the Bosphorus case has met with some criticism from
authoritative commentators, who had pointed at the impropriety of a human
rights supervisory body not discharging its institutional function under the pre-
text of an equivalent protection available before some other international bod-
ies.79 The difference, however, is that the ECJ, in its own understanding, is not
77. Judgment, para. 323.

78. Cf. Art. 19 of the Draft Articles on Diplomatic Protection adopted by the UN Interna-
tional Law Commission in 2006 (Off. Records of the General Assembly, Sixty-first session,
Suppl. No. 10 (A/G1/10).
79. Cf. Gaja, “The Review by the European court of Human Rights of Member States’ Acts
Implementing European Union law: ‘Solange’ yet Again?” in Dupuy et al. (Eds.), Völkerrecht
als Werteordnung – Common Values in International Law, Essays in Honour of Christian Tomus-
Joined Cases C-402 & 415/05 P 235
such an international supervisory body, but a juridical body analogous to a

domestic court. In this perspective, it would have been neither inconceivable
nor improper for the Court to better define the conditions under which it would
be ready to renounce the exercise of its judicial function in favour of a broader
international instance. Such an approach would have had the advantage of
enabling the Court both to keep faithful to the principle of the (judicial) protec-
tion of human rights and to engage in a more constructive dialogue with the
other EC institutions and other international organizations.
Finally, in its refusal to enter into any meaningful discussion on the scope of
Article 307, the Court also missed the opportunity to give Member States much
needed guidance as to the ways to eliminate the incompatibilities of their obli-
gations. As it is well known, the Court has so far entertained an ambiguous
position with regard to Article 307(2) EC, despite the fact that, being an illus-
tration of the duty of cooperation of Article 10 EC, the disposition shares with
that Article the character of a cornerstone of the constitutionalization of the
Community legal order.80 In particular, the Court has never clearly expressed
its position on the consequences if the “appropriate steps” of Member States
remain unsuccessful. On some occasions the Court recalled the duty of Mem-
ber States in the last resort to denounce the earlier agreement.81 However,
besides the fact that from the Court’s jurisprudence is not clear whether this
consequence should be attained in any event or only to the extent that the rules
of Article 56 of the Vienna Convention on the law of the treaties permit it, it is
obvious that this would not be an option in the case of the UN Charter.
5.4. What next?
The last remarks bring us to the unavoidable question: and now? Despite the
sense of self-satisfaction of the Court in its constitutionalist-dualist posture,82 it
is now up to the Member States to come to grips with their diverging, even
opposing, obligations under UN law and under EC law. From the perspective
of Member States and of the EC institutions, the most straightforward options
would be either for every Member State to renounce compliance with the rel-
chat (Kehl Engel Verlag, 2006), p. 517, at 522: Conforti, “Le principe d’équivalence et le con-
trôle sur les actes communautaires dans la jurisprudence de la Cour européenne des droits de
l’homme” in Breitenmoser et al. (Eds.), Human Rights, Democracy and the Rule of Law, Liber
Amicorum Luzius Wildhaber (Dike, Zurich, 2007), p. 173, both with further bibliography.
80. Cf. Koutrakos, EU International Relations Law ( Hart Publishing, Oxford and Portland,
2006), p. 304.
81. E.g. Joined Cases C-62/98 & C-84/98, Commission v. Portugal, [2000] ECR I-5171. For
a critical appraisal of the Court’s decisions cf. Klabbers, “Moribund on the fourth of July? The
Court of Justice on prior agreements of the Member States”, 26 EL Rev. (2001), 187, who stig-
matizes “the fierceness of the Court’s formulation”, at 196.
82. Cf. Nettesheim, op. cit. supra note 6, at 592.
evant Security Council resolutions (or else risk infringing EC law) or for the
EC to enact a new regulation with a different content, by the lapse of the three
months of grace accorded by the ECJ. Both options would entail for Member
States a possible violation of an international obligation, either directly or
(arguably) through the device of an international organization.83
Tertium datur? It is not so implausible that for the time being the Commis-
sion and the EU Council could decide, by a narrow but obviously permissible
interpretation of the judgment, to amend Regulation 881 only to the extent that
the names of Kadi and Al-Barakaat are even temporarily removed. This move
would have the disadvantage for the CFI of being potentially submerged with
dozens of similar cases, but the advantage for Member States, and obviously
in the first place for the two Member States which happen to be also permanent
members of the Security Council, of gaining some precious time in order to
better organize the “appropriate steps” envisaged by Article 307(2). One of the
most obvious appropriate steps would of course be to try to convince the other
members of the Security Council to fundamentally reconsider the listing and
de-listing mechanisms of the Consolidated List created pursuant to Resolution
1267, recently but still too timidly reshaped by Resolution 1822 of 30 June
2008. The fact that the ECJ, contrary to the suggestion of the Advocate
General,84 abstained from making any direct finding under Article 307 could
well be seen as a political quid pro quo in favour of the two Member States,
France and the United Kingdom, which predictably had most vehemently
defended the validity of Regulation 881/2002, leaving them a more comfort-
able space for diplomatic manoeuvre.
83. Cf. Art. 28 of the Draft Articles on International Responsibility of International Organi-
zations, adopted in first reading by the UN International Law Commission in 2006: “1. A State
member of an international organization incurs international responsibility if it circumvents one
of its international obligations by providing the organization with competence in relation to that
obligation, and the organization commits an act that, if committed by that State, would have con-
stituted a breach of that obligation. 2. Para 1 applies whether or not the act in question is inter-
nationally wrongful for the international organization”. For the commentary of the Article, which
has been tailored to the ECtHR jurisprudence on the responsibility of EC Member States for EC
acts cf. Off. Records of the General Assembly, Sixty-first Session, Suppl. No. 10 (A/61/10), paras.
283–286. There could be however some room to explore the possibility to exclude the wrongful-
ness of the conduct of Member States and EC in the framework of countermeasures, as envis-
aged by the same Draft Articles, cf. Art. 60[57], adopted by the Drafting Committee provisionally
in 2008: “This chapter [on countermeasures] is without prejudice to the right of any State or
international organization, entitled under Art. 52, paras. 1 to 3, to invoke the responsibility of an
international organization, to take lawful measures against the latter international organization to
ensure cessation of the breach and reparation in the interest of the injured party or of the benefi-
ciaries of the obligation breached”, cf. Off. Records of the General Assembly, Sixty-third Session,
Suppl. No. 10 (A/63/10), para 142.
84. Opinion of the A.G., para 29.
Joined Cases C-402 & 415/05 P 237
It is worth stressing that from the perspective of the UN, the Kadi judgment
offers little if any help in order to improve the review mechanism of the Con-
solidated List. This was dryly recognized also by the UN Special Rapporteur
on the promotion and protection of human rights while countering terrorism,
Professor Scheinin, who in a statement to the Third Committee of the General
Assembly of 22 October 2008 briefly outlined the options available to the
Security Council as alternatives to the establishment of a fully-fledged review
mechanism based on a quasi-judicial body composed of experts serving in
their independent capacity, which, needless to say, would be by far the best,
but also the most unlikely solution.
The most radical, but actually unrealistic, alternative would be to abolish
the 1267 Committee and the terrorist listing altogether. Security Council Res-
olution 1373 would then constitute a sufficient legal basis for national listing
procedures, which would (hopefully) respect the basic requirements of due
process. A second alternative would be to do nothing at all, letting the EC Reg-
ulation lapse, and counting on the willingness of States to continue the national
implementation of the sanctions regime. This option, however, as the Special
Rapporteur perhaps too pessimistically (or rather optimistically) foretold,
would present the risk of a wave of domestic litigation which would bring
about legal uncertainty and discredit to the UN.85 A more modest and practical
alternative would be for the UN Sanctions Committee to provide to the EU
institutions, to the Governments and to the targeted persons and entities more
information on the grounds for the listing. This alternative too presents some
irksome problems. If the purpose is to enable the concerned individuals and
entities to share the same level of information of governments in order to bet-
ter prepare their case before national courts and the ECJ, as the Special Rap-
porteur said, this solution is to be expected to encounter a fiery resistance by
some, if not all, Members of the UN 1267 Sanctions Committee, which draws
the bulk of its information from highly reserved intelligence and law-enforce-
ment sources.
The already quoted Chahal decision by the ECtHR could provide for some
guidance. The Court made clear that the mere presence in the expulsion pro-
ceeding of an advisory panel to the Home Secretary, before which the appli-
85. According to the 8th Report of the Analytical Support and Sanctions Monitoring Team
pursuant to Res. 1735 (2006) concerning Al-Qaida and the Taliban and associated individuals
and entities (S/2008/324), besides the cases pending before the CFI, the ECtHR and the UN
Human Rights Committee, there is an action brought by the Al Rashid Trust now pending before
the Supreme Court of Pakistan on the Government’s appeal, an action brought by
Mr. Kadi pending before the Turkey’s Administrative cases Bureau, and the case of Al-Haramain
Foundation (USA) which returned to a federal district court in Oregon, after that the Appellate
Court for the 9th Circuit upheld on 16 Nov. 2007 the Government’s defence on State secrets
privilege (Al-Haramain Islamic Foundation v. Bush, 507 F. 3d 1190, 1202).
cant was not entitled to legal representation, and whose decision was not
binding and not disclosed, did not meet the requirement of Article 13 ECHR.86
In that case some intervening human rights organizations had drawn the Court’s
attention to the procedure applied in similar cases in Canada, which the Court
seemed to have favourably noticed. Briefly, the accommodation of the legiti-
mate security concerns and the right to a fair hearing would be reached by
guaranteeing the confidentiality of security material not only by an in camera
hearing, but also by requiring the evidence to be examined in the absence of
both the applicant and his or her representative, but in the presence of a “secu-
rity cleared counsel” instructed by the proceeding court. The applicant would
then be given a summary of the evidence obtained, with necessary deletions.87
The judgment by the CFI in the People’s Mojahedin Organization of Iran
case, handed down on 23 October 2008,88 could prove another forceful guide-
line for Member States and EC institutions. The CFI found that the Council
had violated the applicant’s rights in that it had continued to include the appli-
cant’s name in the terrorist list annexed to Regulation 2580/2001, regardless of
the fact that the UK’s competent organ, the Proscribed Organisations Appeal
Commission, had a few weeks earlier allowed an appeal against the Home
Secretary’s decision refusing to lift the proscription of the applicant as an orga-
nization concerned in terrorism. However, it is apparent that the CFI decided
the case solely on that narrow and factual basis, because at the same time it dis-
missed all the applicant’s other pleas concerning the validity of the previous
Council Decisions with regard to it.
In the first ground the applicant had alleged an infringement of Article
233 EC because the Council had maintained its name in the periodical review
of the list, despite the CFI’s annulment decision of 12 December 2006 in the
OMPI case previously referred to. Further the applicant alleged infringements
of its right to defence and of the Council’s obligation to state reasons, as well
as misapplication of the burden of proof and manifest error in assessing the
evidence. The Court rejected all arguments. With regard to the Council’s
refusal to amend or withdraw the name from the list, the Court found that it
was well within the Council’s right “for so long as was absolutely necessary
for it to adopt a new measure”, once the formal and procedural rules required
by the CFI relating to the applicant’s right of defence and the Council’s own
obligation to state reasons were respected.89 With regard to the Council’s
refusal to grant the applicant’s request to be heard at a formal hearing, the
86. Chahal v. United Kingdom, cited supra note 30, at para 154.
88. Case T-256/07, People’s Mojahedin Organization of Iran v. Council, judgment of 23 Oct.
2008, nyr.
89. Ibid., para 67.
Joined Cases C-402 & 415/05 P 239
Court denied the existence of any such right.90 As for the applicant’s complaint
that the Council had limited itself “to repeat word-for-word its statement of
reasons”, notwithstanding all the exculpatory documents submitted by the
Organisation, the Court found that such behaviour “in itself means only that
the Council maintained its point of view”.91 With regard to the alleged evi-
dence’s poor management, the Court found that the principle of cooperation
between the Council and Member States in the context of combating terrorism
“entails for the Council the obligation to defer as far as possible to the assess-
ment conducted by the competent national authority”, although with the sig-
nificant addition “at least where it is a judicial authority”.92
Yet, there is a very central question that the Court left unanswered. In its
statement of reasons, the Council had communicated to the applicant a number
of documents, but with regard to certain apparently relevant documents the
Council had explained that “it was not in a position to forward them to the
applicant, because the State which had provided them had not consented to
their disclosure”.93 That could have proven to be a real stumbling block for the
Council’s defence, as well as for the Court’s deference, but the Court elegantly
skipped the obstacle by finding that “in the present proceedings, the applicant
has challenged neither the refusal to communicate certain incriminating docu-
ments, nor the reasons put forward to justify it”.94
In the end, it seems more than probable that the UN Special Representa-
tive’s proposal referred to will be further watered down, along the lines sug-
gested by the CFI’s recent findings. A week after the ECJ’s Kadi ruling, the
EU’s anti-terrorism co-ordinator Gilles de Kerchove stated that the EU would
“provide Mr Kadi and his lawyers with a statement of the reason why we con-
sidered he should be on the list – the same for Al Barakaat – and give them a
chance to challenge the reasons”.95 That implies of course much diplomatic
manoeuvring between Brussels, New York and some European capitals in
order to negotiate an acceptable amount of further information for the Coun-
cil’s statement of reasons. Whether the ECJ, or for that matter domestic courts,
will then be appeased and readier to comply, remains to be seen.
Andrea Gattini*
90. Ibid, at para 93.

91. Ibid., at para 95.
93. Ibid., at paras. 11 and 91.
95. Quoted in Rozenberg, “EU court ruling makes fighting terror more difficult”, The Tele-
graph online, 25 Sept. 2008.
*
Professor of International Law, University of Padova.

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2. The background to the Court’s judgment

The case concerns the annulment of a Council regulation adopted in order to

3. The Opinion of the Advocate General

Advocate General Poiares Maduro delivered identical Opinions on Kadi and

8. Opinion of the A.G., paras. 11–16.

4. The Judgment of the Court

4.1. The legal basis of the contested Regulation

case (Commission v. Council, judgment of 20 May 200821), to assess the cross-

23. Judgment, para 168.

measures through the efficient use of a Community instrument”.25 In the

4.2. Protection of human rights

25. Ibid., para 226.

effective judicial protection requires the Community authorities to communi-

29. Ibid., para 336.

deciding however to maintain the effects of the Regulation for a maximum

5.1. The legal basis

impression of contrivance.36 The expedient character of the reliance on Article

5.2. EC inward constitutionalism vs. international law’s discourse

increasingly displayed its determination to reduce as much as possible the

to international law by recalling Poulsen50 and Racke,51 it seems probable,

5.3. Were there alternative options?

view, also a Security Council resolution in breach of fundamental human rights

54. Judgment, paras. 269–270.

77. Judgment, para. 323.

such an international supervisory body, but a juridical body analogous to a

5.4. What next?

90. Ibid, at para 93.

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