User:Wyndham Freeman/Kadi v Council and Commission

Change Log
Reorganized judgment section to explain the judgment rather than block-quote the entire file. Expanded on significance and facts sections using scholarly sources. Reformatted quotes and cited previously uncited texts.

Facts
UN Security Council Resolution 1267 (1999) froze the funds of those suspected of associating with Osama bin Laden. In keeping with the Common Foreign and Security Policy and upholding the member-states individual commitments to follow UNSC resolutions, the European Union gave effect to this resolution through multiple regulations.

Kadi sought to annul the regulation placing him under sanction within the Court of First Instance. He argued that the EC lacked competence to sanction individuals and had breached his fundamental rights to a fair hearing, respect for property, and effective judicial review.

Judgment
The Court of First Instance found that the power to sanction individuals was supplied by article 308 EC (352 TFEU) which allows the Council, "acting unanimously on a proposal from the Commission," to grant the Community the powers "necessary to attain... one of the objectives of the community". As far as fundamental rights were concerned, the Court found that a state, and also the EC, could not review a UNSC resolution within its own legal order. The case was appealed to the ECJ. In his appeal, Kadi cited the ECtHR case Bosphorus Airlines v Ireland as a case where a Community regulation, adopted to give effect to a UNSC resolution, was reviewed in light of fundamental rights.

Before the ECJ issued its judgment, Advocate General Maduro issued an opinion on the case. He argued that the use of article 308 EC (352 TFEU) was unnecessary, as article 310 EC (217 TFEU) (allowing sanctions on third countries) also allowed sanctions on individuals from third countries, insofar as those sanctions affect the economic relationship between the EC and the third country. Maduro also argued that the EC should, in granting effect to the UNSC regulation, ensure that fundamental rights are followed within the EC legal order.

The ECJ judgment held the original judgment of the Court of First Instance, that article 308 EC (352 TFEU) was necessary to grant competence. The ECJ did confirm that the Community could review the lawfulness of a regulation with regard to fundamental rights, whether or not that regulation was adopted to give effect to international law. The Court judged that both Kadi's rights to a fair hearing and respect for property had, in fact, been infringed; the Council was required to remedy the infringements.

Significance
In this case, the ECJ affirmed its right to review all Community acts with regard to fundamental rights, even if those acts are passed in conformity with an internationally-binding resolution. In this way, the ECJ gave itself the ability to "de facto review" the resolution itself. Additionally, by comparing the UN Charter to agreements under article 300(7) EC (218 TFEU), the court declined to place the UN Charter hierarchically above EC law.

These developments follow the court's jurisprudence of the autonomy of European law from national law, and by extension from intergovernmental agreements such as the UN.