C-402/05P C-415/05P Kadi and Al Barakaat v Council [2008] ECR I-6351

• 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

• 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?

• 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

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

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]

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.