This article delves into the Kadi and Al Barakaat v Council [2008], a seminal CJEU case that challenges the interplay between international obligations and EU fundamental rights, crucial for law students studying EU law.

  • Foreign and security policy, violation of fundamental human rights, and EU law’s relationship with international law were all explored here.

Facts of the Case

  • Following the 9/11 terror attack, Kadi and Al Barakaat Foundation were put on a blacklist by the UN Security Council (UNSC) having been considered supporters of Al-Qaida – anyone on this list had their assets frozen
  • At the court of first instance, the claimant (C) Kadi wanted to challenge the EU Regulation which imposed economic sanctions on him, following the blacklist, without informing him.
  • He claimed this decision violated his right to: a fair hearing, judicial protection, and property.
  • His action for annulment was rejected by the Court of First Instance, nor did they find that the UNSC violated the principle of ‘jus cogens’ (overriding principles of international law) – he appealed this judgment to the Court of Justice

Issues

  • Was the Court of First Instance right in its judgement?
  • Would EU law have to abide by this international law, accepting the decision at first instance?
  • Were fundamental rights violated?

Held by the European Court of Justice

  • Overturned the decision of the Court of First Instance; whilst they did have the jurisdiction to review the UNSC regulations, they could review the regulations of the EW
  • EU law may not abide by international law where rights and principles were being violated

Findings of the Court

  • “measures incompatible with respect for human rights are not acceptable in the Community” [284]
  • “obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty” [285]
    • Therefore, such international law cannot be implemented by EU law as it offends basic rights
  • “the Community judicature must, in accordance with the powers conferred on it by the EC Treaty, ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like the contested regulation, are designed to give effect to the resolutions adopted by the Security Council” [326]
    • This meant that the Court of First Instance made an error in judgment by not considering the violation of rights that the appellants suffered
  • “the rights of the defence, in particular the right to be heard, and the right to effective judicial review of those rights, were patently not respected” [334]

Significance of the Case on the Development of the Law

The Kadi and Al Barakaat v Council [2008] decision stands as a cornerstone in the field of EU law, particularly in terms of judicial review, the relationship between international law and EU law, and the protection of fundamental rights within the EU framework. This case has profound implications on several fronts:

  • The primacy of EU Fundamental Rights over International Agreements: The Kadi decision underscored that EU fundamental rights have primacy over international agreements, including UN Security Council resolutions. This was a landmark shift indicating that EU institutions are bound by fundamental rights, as enshrined in the EU Treaties, even when implementing international law. This case influenced later decisions such as Mukarubega v Préfet de Police [2014], where procedural rights under EU law were held superior to administrative decisions, and Rosneft [2017] (C-72/15), which considered the validity of EU acts against the EU’s international obligations under the WTO. The Kadi ruling ensures that actions by EU institutions, even those implementing international law, are scrutinized under EU fundamental rights standards.

  • Judicial Review and the Autonomy of the EU Legal Order: Kadi and Al Barakaat bolstered the concept of the autonomy of the EU legal order, particularly concerning the judicial review of EU acts implementing international law. This autonomy permits the CJEU to disregard international measures that conflict with EU fundamental rights, as reiterated in Opinion 2/13 [2014] on the EU’s accession to the European Convention on Human Rights (ECHR). The case has fortified judicial review within the EU, leading to a more robust mechanism for protecting individual rights against EU measures perceived as infringing on fundamental rights, demonstrated in H v Council, Commission and UK [2016].

  • Impact on Counter-Terrorism Measures and Individual Rights: The implications of Kadi extend into how the EU adopts and implements counter-terrorism measures. By emphasizing the need for these measures to comply with fundamental rights, the decision has led to more careful consideration and reformulation of EU policies related to sanctions and terrorist listings. This has influenced subsequent cases like LTTE v Council [2017], where the General Court annulled measures against the LTTE due to procedural issues, reinforcing the need for a fair hearing and effective judicial remedies in sanctions cases.

Exam Questions and Answers

Below you will find answers to questions that are most commonly asked based on this case.

How has the Kadi ruling impacted the formulation of subsequent EU regulations concerning sanctions and terrorist listings?

Following the Kadi decision, the EU has significantly revised its approach to sanctions and terrorist listings to ensure alignment with fundamental rights protections. The ruling prompted the adoption of the EU Regulation 881/2002, which established clear procedures for listing and de-listing individuals and entities under EU terrorist sanctions, incorporating rights to a fair hearing and the right to judicial review. For instance, amendments to this regulation have introduced a requirement for the Council to provide statements of reasons for listings, which are directly communicated to the concerned parties. This facilitates the right to effective remedy and access to information, aligning with the standards set by the Kadi judgment. Subsequent case law, such as OM v Council [2017], further scrutinized the adequacy of reasons given in listing decisions, emphasizing transparency and the right to defense.

What specific procedural safeguards have been implemented in the EU to ensure compliance with the Kadi judgment in terms of rights protection?

Post-Kadi, the EU has implemented several procedural safeguards to protect the rights of individuals and entities targeted by sanctions. One significant development is the establishment of the Ombudsperson for the UN Sanctions Committee, providing an independent review mechanism for sanctions listings. This role is crucial in ensuring that those affected have a means to challenge their listings directly at an international level. Within the EU framework, procedural safeguards have been strengthened through legislative reforms such as clearer communication of the reasons for listings and the provision of a more accessible means to challenge sanctions in the EU courts. The European Union’s Common Foreign and Security Policy (CFSP) now includes provisions that require regular review of sanctions lists to ensure they remain valid and proportionate, thereby preventing rights infringements.

Are there any notable cases post-Kadi where the CJEU has had to balance EU fundamental rights against pressing international security concerns?

Several post-Kadi cases have tested the CJEU’s ability to balance fundamental rights with security concerns. One prominent example is the Rosneft (C-72/15) case, which examined EU sanctions against Russian entities following the Ukraine crisis. The CJEU upheld the sanctions, emphasizing that while fundamental rights such as property and business operations must be protected, these rights can be restricted in the interest of international peace and security. Another example is Al Chodor (C-528/15), where the Court addressed the detention of third-country nationals under the EU’s Return Directive, emphasizing the necessity of clear, precise, and non-arbitrary criteria for detention, thereby safeguarding personal liberty while considering state security and public policy. These cases illustrate the ongoing challenge faced by the CJEU in maintaining a balance between upholding fundamental rights and addressing security imperatives.

Study Law in the UK

  • This field is for validation purposes and should be left unchanged.