Kadi and Al Barakaat V Council of the European Union and Commission of the European Communities: The Incompatibility of the United Nations Security Council's 1267 Sanctions Regime with European Due Process Guarantees

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CONTENTS  I   Introduction II  The UN Security Council's 1267 Listing and Delisting Procedure and      Due Process        A The UN Security Council's 1267 Sanctions Regime        B The Listing and Delisting Procedure and Due Process Concerns III The Implementation of the UN Security Council's 1267 Regime within      the EU and Challenges before the Court of First Instance        A Regulations by the EU Council        B The Kadi and Yusuf Cases before the Court of First Instance IV  Opinions of the Advocate General V   The European Court of Justice Decision in Kadi and Al Barakaat VI  Significance of the Decision 

I INTRODUCTION

The European Court of Justice ('ECJ') handed down its decision of Kadi and Al Barakaat on 3 September 2008. The case dealt with the implementation of the United Nations Security Council's Resolution 1267 (1) sanctions regime ('1267 sanctions regime') in the European Union. In its judgment, the Court reviewed the treatment of the case by the Court of First Instance ('CFI') with considerable attention, and then divided its conclusions into three separate but interdependent parts:

1 the competence of the Council of the EU to adopt the regulation (Regulation 881/2002 (2) and others that have followed to amend it) (3) for the freezing of financial resources by states of persons related directly or indirectly to organisations considered to engage in international terrorist activities;

2 the compatibility of the regulation with art 249 of the Consolidated Versions of the Treaty on European Union and of the Treaty Establishing the European Community; (4) and

3 the compliance of the regulation and its provisions with certain fundamental rights.

With regard to the first part, the ECJ found that the Council was competent to adopt Regulation 881/2001. The Court also confirmed the findings of the CFI that the contested regulation was compatible with art 249 of the Consolidated Treaties and accordingly dismissed as unfounded the appeal of Al Barakaat International Foundation ('Al Barakaat') on the second part. However, the Court rejected the findings of the CFI that the courts of the European Communities had, in principle, no jurisdiction to review EU regulations implementing UN Security Council resolutions. Instead, it held that regulations by the Council implementing international legal instruments must comply with the fundamental principles of European Community law including human rights law as endorsed by the ECJ and developed in the European context. The Court concluded that the regulations by the EU Council implementing the UN Security Council's 1267 sanctions regime violated fundamental rights as protected under Community law, including: the fight to a hearing; the right to an effective judicial review and remedy; and the fight to property.

This case note first introduces the UN Security Council's 1267 sanctions regime, which lies at the heart of the case in question. It draws particular attention to the 1267 sanctions regime's listing and delisting procedure and its inherent due process problems. The ease note then focuses on the implementation of the 1267 sanctions regime within the EU and discuss challenges to this implementation before the CFI. The CFI handed down its decisions in Kadi (5) and Yusuf (6) in September 2005. These decisions were appealed to the ECJ. (7) During the appeal process the EU Advocate General issued two (nearly identical) opinions in January 2008, which critically reviewed the CFI judgments. These will be the subject of examination in a following section. Finally, the case note will address the key findings of the ECJ's decision and briefly discuss the judgment's significance, both as far as legal and political implications are concerned.

II THE UN SECURITY COUNCIL'S 1267 LISTING AND DELISTING PROCEDURE AND DUE PROCESS

A The UN Security Council's 1267 Sanctions Regime

On 15 October 1999 the UN Security Council, acting under Chapter VII of the Charter of the United Nations ('UN Charter'), adopted Resolution 1267, which requires all states to freeze the assets of, prevent the entry into or transit through their territories by, and prevent the direct or indirect supply, sale and transfer of arms and military equipment to, any individual or entity associated with al Qaeda, Osama bin Laden and/or the Taliban as designated by the Al-Qaida and Taliban Sanctions Committee (' 1267 Committee'). …

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