LLM Student at King’s College London
The (previous named) ECJ’s decision in September 2008 in Kadi I has been called “one of the most discussed judgments in ECJ history.” Following the recent release of the Attorney General’s Opinion in Kadi II, and in anticipation of the CJEU’s decision, this controversial litigation appears an apt topic for ‘The Year of the Citizen’. Bearing in mind the original conception of the European Union as a trade union, the fact that one of the Court’s most discussed judgments concerns anti-terrorism measures against individuals demonstrates just how much the sphere of the Union has grown to encompass. This article will explore but a few of the vast range of legal issues raised by the “saga” of the Kadi cases.
The Kadi cases are the most notable in a series of challenges against the targeted asset-freezing sanctions stemming from the United Nations Security Council (UNSC). The EU Regulation that Mr. Kadi challenged (in so far as it applied to him) implemented Resolution 1267 (1999) of the UNSC, which set up the sanctions regime targeted at Al-Qaeda and associated individuals. Unlike other lines of sanctions, the 1267 sanctions list is controlled by a subsidiary body of the UNSC, known as the Sanctions Committee.
Mr Kadi was first included on the sanctions list in 1999. Once listed, Mr Kadi was subject to a worldwide asset-freeze and travel ban – all without being informed of the reasons for his listing or being given any meaningful opportunity to challenge the measures. Targeted asset-freezing sanctions are the most severe illustration of the move in counter-terrorist action in the ‘war on terror’ towards pre-emptive action, in clear violation of the principles of the rule of law.
In Kadi I, the (then) ECJ in 2008 reversed the decision of the (then) CFI with regards to its ability to review the legislation in light of certain fundamental rights. The CFI had held that such a review of the EU Regulation was precluded by virtue of the source of the measure being implemented: the source being the UNSC. The crucial difference that so changed the outcome of the ECJ’s decision was the finding, in accordance with the principles from Les Verts, that all EU measures are subject to review against established legal standards regardless of the source of the measure. After having crossed this hurdle, the ECJ then conducted a marginal review of the Regulation, which was all that was required to establish a breach of due process rights. This led the Court to annul the measure in so far as it applied to Mr. Kadi, but not without the delay of three months being given to the Commission to allow them to review their procedure in light of the judgment.
This decision provoked strong reactions from both ends of the spectrum. Outrage revolved around the ECJ’s audacity in interfering with matters as paradigmatically political as counter-terrorism action, and for disregarding the EU’s obligations towards international law through conducting (what effectively amounted to) an indirect review of the UNSC. Praise, on the other hand, focused on the ECJ’s strong stance in relation to its protection of fundamental rights.
While space does not permit a detailed examination of these arguments, it is suggested here (in agreement with Maya Lester, counsel for Mr. Kadi, and Piet Eeckhout) that the decision was far from revolutionary and was in fact appropriate in context. The case confronted the issue of which of the EU’s fundamental Treaty principles to prioritise legally when they came into conflict: the EU’s international obligations under Article 3(5) TEU (chosen by the CFI), or fundamental rights and principles of law under Article 2 TEU (prioritised by the ECJ). The ECJ’s active role in promoting the EU as an institution that guarantees the protection of human rights is widely documented, and such rights protection is “foundational for the EU’s democratic legitimacy.” Had the ECJ followed the reasoning of the CFI and declined jurisdiction to review the Regulations by virtue of their origin, it would have left a gaping legal vacuum and the clear message for Member States that the guarantees of rights protection by the EU were empty rhetoric.
The corrections made by the ECJ to the CFI’s legally flawed decision – which risked turning the UNSC into a “supreme, unfettered legislature”– are therefore strongly supported by the wider considerations of the constitutional principles at stake. The ECJ made a decision to uphold human rights in the face of political pressure the contrary, demonstrating the substance behind the EU’s rights discourse. Furthermore, the frustration with the UNSC sanctions regime evident in the rising number of domestic challenges illustrates that the ECJ’s decision was necessary and timely.
The practical ramifications
Since the judgment in 2008, the UNSC has made a variety of modifications to the operation of the Sanctions Committee. ‘Narrative summaries’ of reasons for individual listings began to be issued in the aftermath of the judgment, and Resolution 1904 (2009) set up the Office of the Ombudsperson to review delisting applications – a direct consequence of the ECJ’s decision in Kadi I. That the UNSC has not fought the challenges but rather implemented changes to the regime is perhaps the most convincing evidence in favour of the ECJ’s decision in Kadi I. Furthermore, a statement from the UN General Assembly issued in 2009 urged states to include “adequate human rights guarantees” in their national sanctions measures, which effectively endorses the ECJ’s position.
Although these are moves in the right direction, the basic inadequacies in the regime still persist. The system still provides no procedure for impartial review nor guarantees concerning the adequate provision of evidence to those listed. However, a distinct increase in the individuals being delisted can be seen on the Sanctions Committee website. Along with a number of other individuals, Mr Kadi himself was finally delisted at the level of the UN Sanctions Committee on the 5th October 2012. While the need for further change is still pressing, the international pressure on the Sanctions Committee to reform has shown that the Kadi I decision was a far cry from the “pyrrhic victory” prophesied by de Burca.
March saw the release of Attorney General Bot’s Opinion in Kadi II. If the CJEU follows the Opinion, both decisions of the lower court in the Kadi “saga” will have been overturned on appeal.
The Kadi II litigation was launched to challenge Mr Kadi’s relisting following the ECJ’s decision in Kadi I. As the ECJ in Kadi I insufficiently addressed the implications of indirectly reviewing the operation of the Sanctions Committee or the appropriate level of review, the European General Court (EGC) had little guidance upon which to rely in Kadi II other than the phrase “in principle, full review”. In line with the OMPI judgment, the EGC’s interpretation was that the ECJ intended review to extend beyond due process to a substantive review of the evidence on which the listing decision is based, all of which should be disclosed to the listed individual. Not only does this raise issues regarding the ability of the European courts to conduct such review, it also dangerously fails to strike a reasonable balance between the interests at stake, and risks opening the doors for substantial judicial interference with the political prerogative of security management.
As such, it was advocated that the CJEU’s decision in Kadi II ought to take a more narrow interpretation of its Kadi I decision. AG Bot has given the first indication of the line the Court will take, and, as anticipated, it has been narrowed: he recommends that the judgment of the EGC be set aside and the action brought by Mr. Kadi against his re-listing be dismissed. The Opinion clearly takes a more deferential stance towards the political nature of the counter-terrorist measures, and towards the UNSC’s designated role in identifying and tackling threats to international peace. His suggested approach is that:
“The respect which the European Union must pay to…international law does not…have to be reflected in immunity from jurisdiction…but in an adaptation of the judicial review conducted.”
A number of reasons are then given for conducting a low procedural review of the implementation by the Commission. As well as addressing the political nature of counter-terrorist action, notable amongst these is the reliance on the improvements in the procedure for review before the Sanctions Committee post-Kadi. As highlighted above, it is certainly debatable whether the Office of the Ombudsperson is in fact quite as effective in the listing and delisting process as the Attorney General maintains. However, whilst the challenge in Kadi I was relatively straightforward once the ECJ established jurisdiction, the modifications since made to the regime do make a challenge at judicial level increasingly complicated. As Ginsborg and Scheinin advocate (also implicit in the Opinion), it is possible that the judiciary have gone as far as they can in pushing for reform of the sanctions regime and it has to be a political solution that confronts the remaining inadequacies.
While the ECJ made an appropriate decision in Kadi I, especially in light of the flawed CFI judgment, it nonetheless opened a Pandora’s box – partly through the nature of the issues in the case, and partly due to repercussions from its own reticence. In addition to navigating the network of international organisations, the European courts are having to grapple with relatively novel issues concerning the role of the judiciary in reviewing counter-terrorism action, where on both sides there is much at stake: interference with individual liberty and the rule of law on the one hand, and the protection of civilians from heinous terrorist attacks on the other. After the overtly political decision of the EGC in Kadi II, it is highly likely in the light of the AG’s Opinion that the broad interpretation given to the ECJ’s judgment in Kadi I will be narrowed by the CJEU in their forthcoming decision. It will be of significance for all cases concerning counter-terrorism measures exactly how the ECJ reconciles the conflicting interests of the individual, the state and the international order.
Although the judicial challenges to the UNSC sanctions regime have stimulated reforms at the UN level, the changes implemented thus far do not go deep enough. AG Bot’s Opinion reflects the current feeling that further improvement of the regime demands a political solution, namely developing cooperation between the EU and the UN in this area. However, considering that the deep structural deficiencies of the sanctions regime are reflective of a general trend in counter-terrorism towards pre-emptive action, it is perhaps wishful thinking to anticipate such fundamental change stemming from the originators and greatest advocates of such action. Nonetheless, despite targeted sanctions being the West’s strongest pre-action measure in the ‘war on terror’, their suitability for and efficacy in combatting terrorism is being increasingly doubted. As Eckes says, “the end of fighting terrorism no longer justifies all means.” It remains to be seen what means the end does justify.
 Murphy (2012: p.115).
 Kadi I, C-402/05 and C-415/05. Kadi II, joined cases C‑584/10, C‑593/10 and C‑595/10. AG Bot’s Opinion .
 Such as the sanctions stemming from Resolution 1373 (2001).
 C-294/83 Les Verts , cited by the ECJ in Kadi I at .
 Kadi I [281-327].
 Kadi I [331-372].
 See, for instance, Grainne de Burca, Jean Monnet Working Paper 01/2009.
 See, for instance, Türküler Isiksel (2010) European Law Journal 16(5).
 Maya Lester, counsel for Mr Kadi, at King’s College, 05/11/12. Eeckhout, EJIL:Talk! (Blog) (25 February 2009).
 Türküler Isiksel at no.8, p.553.
 Von Bogdandy, (2012) Common Market Law Review 49:489. Note how important this is in the context of the EU’s current legitimacy crisis and democratic deficit at the institutional level.
 Note context of the recent wave of EU rights discourse, including the incorporation of the EU Charter of Fundamental Rights into the Lisbon Treaty and the proposed accession to the ECHR.
 Eeckhout, (2007) European Constitutional Law Review 181.
 As pointed out in AG Bot’s Opinion in Kadi II .
 G.A. Resolution 63/185 (2009), UN Doc. A/RES/63/185, para.20, cited in Ginsborg (2011: p.5).
 Ginsborg & Scheinen, EUI Working Paper, RSCAS 2011/44 (May 2011).
 De Burca, above no. 7 (p.46).
 Kadi I , Kadi II at .
 Kadi II .
 Ginsborg, no.16 (p.10).
 Opinion of AG Bot, especially , .
 Ibid,  (italics my own).
 Ibid .
 Opinion of AG Bot at . Ginsborg, no.16 (p.10).
 Murphy (2012: p.146). This is particularly in light of the low costs of funding terrorism – the cost of the London 7/7 bombings is estimated at less than £8000. Danziger, Journal of Money Laundering Control (2012) 15(2), 210-236.
 Eckes, “EU Counter-Terrorist Policies and Fundamental Rights: The Case of Individual Sanctions” (2010: p.12).