ACADEMY OF EUROPEAN LAW EUI Working Papers AEL 2009/10 ACADEMY OF EUROPEAN LAW CHALLENGING THE EU COUNTER-TERRORISM MEASURES THROUGH THE COURTS edited by Marise Cremona, Francesco Francioni and Sara Poli EUROPEAN UNIVERSITY INSTITUTE , FLORENCE ACADEMY OF EUROPEAN LAW ROBERT SCHUMAN CENTRE FOR ADVANCED STUDIES Challenging the EU Counter-terrorism Measures through the Courts EDITED BY MARISE CREMONA , FRANCESCO FRANCIONI AND SARA POLI EUI W orking Paper AEL 2009/10 This text may be downloaded for personal research purposes only. Any additional reproduction for other purposes, whether in hard copy or electronically, requires the consent of the author(s), editor(s). If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the working paper or other series, the year, and the publisher. The author(s)/editor(s) should inform the Academy of European Law if the paper is to be published elsewhere, and should also assume responsibility for any consequent obligation(s). ISSN 1831-4066 © 2009 Marise Cremona, Francesco Francioni and Sara Poli (editors) Printed in Italy European University Institute Badia Fiesolana I – 50014 San Domenico di Fiesole (FI) Italy www.eui.eu cadmus.eui.eu Abstract This collection of papers examines the implications of the European Court of Justice’s approach to UN-related counter-terrorism measures against individuals (so-called ‘smart sanctions’), as expressed by its ruling in Case C-402/05P Kadi v Council and Commission , in which it annulled an EC act implementing a UN Security Council resolution. The impact of this seminal judgment on the EC legal order, on its relationship with the UN Charter, and on the case-law of the European Court of Human rights is the theme of this collection. The papers represent a range of views both critical and supportive of the different aspects of the Court’s ruling and include a survey of the already extensive literature commenting on the CFI and ECJ rulings in Kadi . Keywords European law - human rights - international agreements - terrorism - United Nations TABLE OF CONTENTS Introduction........................................................................................................................... 1 Marise Cremona, Francesco Francioni and Sara Poli Are the Effects of the UN Charter under EC Law Governed by Article 307 of the EC Treaty?................................................................................................................................... 5 Giorgio Gaja The Kadi Case: What Relationship between the Universal Legal Order under the Auspices of the United Nations and the EU Legal Order?.............................................. 11 Christian Tomuschat Kadi and the Vicissitudes of Access to Justice.................................................................. 19 Francesco Francioni Freedom to Choose the Legal Means for Implementing UN Security Council Resolutions and the ECJ Kadi Judgment: A Misplaced Argument Hindering the Enforcement of International Law in the EC................................................................... 31 Riccardo Pavoni Security Council Resolutions and EC Fundamental Rights: Some Remarks on the ECJ Decision in the Kadi Case.................................................................................................... 39 Enzo Cannizzaro The Impact of the Kadi Judgment on the International Obligations of the EC Member States and the EC ................................................................................................................ 47 Nikolaos Lavranos Is the ECJ Ruling in Kadi Incompatible with International Law?................................. 57 Martin Scheinin EC Competence, ‘Smart Sanctions’ and the Kadi Case.................................................. 71 Marise Cremona Terrorism and the ECJ: Empowerment and Democracy in the EC Legal Order ........ 99 Takis Tridimas The Potentially Competing Jurisdiction of the European Court of Human Rights and the European Court of Justice ......................................................................................... 123 Annalisa Ciampi Le Conseil de sécurité, les sanctions ciblées et le respect des droits de l’homme ........ 131 Luigi Condorelli The Kadi Rulings: A Survey of the Literature................................................................ 139 Sara Poli and Maria Tzanou Bibliography ...................................................................................................................... 163 Introduction Marise Cremona, Francesco Francioni and Sara Poli EU counter-terrorism measures, freezing the assets of individuals or entities suspected of financing terrorism, have been at the centre of considerable academic interest, centred on the challenges to their validity before the Community courts. 1 Such an attention was triggered by the fact that the Community judicature was confronted with a very thorny issue: it had to decide whether the obligations under a multilateral Treaty of the status of the UN Charter, whose principles are recognized by the EU Member States (and also by the EU Treaty) as fundamental to the preservation of peace and international security, should take unqualified precedence over those of the EC/EU Treaties, even if they encroach upon European fundamental rights. The opportunity was offered by an annulment action brought by Mr Kadi, targeted by a Community restrictive measure, implementing a Security Council resolution which provided a blacklist of individuals and entities to be sanctioned with asset freezing. The courts had to decide whether the EC regulation at stake should be annulled either for lack of competence or for breach of human rights of the targeted subject. The restrictive measures concerned in this legal action are described as ‘smart sanctions’ since they are selectively targeted at individuals posing a threat to peace and security. The list of suspected subjects is drawn up by the Sanction Committee, a body accountable to the UN Security Council (UNSC). The basis for inclusion in the list is the individual’s behaviour, in particular the provision of financial support to terrorism. The targeted individuals are not sanctioned as a result of their link with the territory of a state which threatens peace and security; hence the categorization as ‘individual sanctions’. In 2005 and 2008 the CFI at first instance and the Court of Justice on appeal adopted two different positions on the legality of the impugned Community measure and more broadly, on matters which lie at the heart of the constitutional foundations of the EC legal order. The two courts took different views, first of all on the position of the EC legal order within the broader international system, under the UN Charter; secondly on the position of fundamental human rights in the hierarchy of the EU norms, and thirdly on the scope of judicial review of Community measures giving effect to a UNSC resolution. To the surprise of many legal writers, the Court of Justice, following Advocate General Poiares Maduro’s opinion, quite radically departed from the CFI judgment on two issues. Firstly, it held that within the EC legal order the supreme laws of the land are the fundamental human rights derived from its own constitutional principles. EU counter-terrorism measures are bound to comply with due process rights even if this results in a failure effectively to implement the UN Security Council resolution. Secondly, the Court asserted full jurisdiction to review the legality of an EC measure implementing a UNSC resolution, even if that act did not seem to leave any discretion to UN members. In December 2008 a workshop was organized by the Academy of European Law together 1 See the judgment of the Court of First Instance, T- 315/01 Kadi v. Council/Commission [2005] ECR II-3649 and the appeal before the ECJ, in joined cases C-402/05 P and C-415/05 P of judgement of 3 September 2008, Yassin Abdullah Kadi, Al Barakaat International Foundation v. Council of the European Union , nyr. 1 Marine Cremona, Francesco Francioni and Sara Poli with the Robert Schuman Centre at the EUI to discuss the impact of the two Kadi rulings, 2 with special attention to that of the Court of Justice. The aim of our workshop was essentially to study the implications of the Kadi rulings for the EU legal order and the UN sanction system. By contrast, we did not consider the position of domestic courts vis-à-vis a UNSC resolution imposing individual sanctions. The papers presented in this workshop revolve around the following questions. What are the ‘constitutional implications’ of the Kadi rulings? By this expression we mean the impact that the two judgments exert on the relationship between the EC/EU law and the law under the UN Charter. What is the status of the UN Charter and of UNSC resolutions within the EC legal order? What does the Court’s judgment tell us about EC competence to adopt smart sanctions and the level of human rights protection guaranteed by the Community Courts? Moreover, what influence is the ECJ’s judgment likely to have on the case-law of the European Court of Human Rights on measures implementing UN sanctions? It is now necessary to briefly present the papers included in this collection. Giorgio Gaja’s essay reflects on the status of the Charter within the Community legal order. The writer’s view is that the importance and uniqueness of this Treaty is such that it is not appropriate to consider that Article 307 of the TEC, governing the relations between obligations under