Kadi v. Council and Commission

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Citation. European Court of Justice, 2008 E.C.R______ (2008)

Brief Fact Summary. The funds of Yassin Abdullah Kadi (D) and Al Barakaat International Foundation (D) was frozen by a regulation of the Council of the European Union (P) following a resolution by the U.N. Security Council. The EU Court of First Instance ruled that it did not have jurisdiction to review measures adopted by the European Community (EC) giving effect to resolutions of the Security Council adopted against the Al Qaeda and Taliban terrorist networks. The defenders appealed.

Synopsis of Rule of Law. It is within the jurisdiction of the courts of member states of the European Union (P) to review measures adopted by the European Community that give effect to resolutions of the U.N. Security Council.

Facts. The U.N. Security Council imposed sanctions under Chapter VII of the U.N. Charter against individuals and entities allegedly associated with Osama bin Laden, the Al Qaeda network and the Taliban in its effort to fight terrorism. A list of alleged offenders was compiled by the U.N. Sanctions Committee and sanctions included freezing such persons and entities assets.
To give effect to the Security Council resolutions, the Council of the European Union (P) adopted a regulation ordering the freezing of the assets of those on the list, which included Yassin Abdullah Kadi (D), a resident of Saudi Arabia, and Al Barakaat International Foundation (D). The defendants began proceeding in the Court of First Instance (CFI) and requested annulment of the Council regulations on the ground that the regulation infringed several of their fundamental rights which included the right to respect for property, the right to be heard before a court of law and the right to effective judicial review.
All claims of the defendants was rejected by the CFI, but confirmed the validity of the regulation, ruling specifically that it had no jurisdiction to review the validity of the contested regulation and indirectly, the validity of the relevant Security Council resolution, except in respect of jus cogens norms. Kadi (D) and Al Barakaat (D) appealed this judgment.

Issue. Is it within the jurisdiction of the courts of member states of the European Union (P) to review measures adopted by the European Community that gives effect to resolutions of the U.N. Security Council?

Held. Yes. It is within the jurisdiction of the courts of member states of the European Union (P) to review measures adopted by the European Community that give effect to resolutions of the U.N. Security Council. The EC courts have the power to review the legality of all Community acts, including the contested regulations that aim to give effect to resolutions adopted by the Security Council under the U.N. Charter. A judgment by an EU court that an EC measure is not in consonance with a higher rule of law in the EC legal order would not implicate a challenge to the legitimacy of that resolution in international law.

Discussion. This case marks the first time that the ECJ confirmed its jurisdiction to review the lawfulness of a measure giving effect to Security Council resolutions. It also constitute the first time the ECJ quashed an EC measure giving effect to a UNSC resolution for being unlawful.