Weblecture 10 – Introduction to international and European union law
Interactions between PIL and EU law:
CJEU, Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat v Council and Commission:
Context:
War against terror (Taliban, al-qaida, Osama bin Laden).
Strategy: cutting terrorist group off finances.
Implementation: UN Security Council Resolutions:
Security Council Resolution 1267 (1999) on the Taliban:
All state must freeze funds or other financial resources that are made available to or
for the benefit of the Taliban.
Determined by a Committee of the UN Security Council, composed of all its
members, on a case-by-case basis.
Extended later to al-Qaeda, Osama bin Laden.
SC resolutions are binding upon all UN members (article 25 of the UN Charter).
Implementation of UNSC resolution in Europe:
Need for an EU act:
Free movement of capital is protected under article 63 TFEU.
Differences between member states would create barriers to the free movement of
capital.
EU Regulation (EC) no 337/2000 concerning a freeze of funds and other financial
resources (replaced by Regulation (EC) No 467/2001, replace by Regulation (EC) No
881/2002).
Annex to be amended by the Commission whenever the UNSC Committee declared new
natural or legal persons to be subject to a freezing of funds.
What happened?
UNSC Sanctions Committee:
Adding Mr Yassin Abdullah Kadi and the Al Barakaat International Foundation (having its
seat in Sweden) on the list (11/2001).
EU Commission added shortly thereafter both to the Annex I of Regulation (EC) 467/2001 by
several Commission regulations.
Kadi and Al Barakaat lodged actions for annulment of the EU regulations at the CJEU (on the
basis of article 263 TFEU).
Annulment of the EU regulations?
On which basis could it be annulled?
Principle of effective judicial protection (right to be heard).
Right to property.
If annulled, the EU member states fail at meeting their obligations under article 25 of the UN
Charter.
Does the EU legal order have to absolutely accept international law (especially the binding force of
UNSC resolutions? Or does it have to protect its fundamental rights?).
Solving conflicts:
Article 103 UN Charter: in the event of a conflict between the obligations of the members of the
United Nations under the present Charter and their obligations under any other international
agreement, their obligations under the present Charter shall prevail.
It seems that the rank decides and that the UN Security Council Resolution prevails over the
fundamental rights protected under the EU Treaties.
Position supported by the GC in Kadi.
CJEU in Kadi:
No derogation from the principles of liberty, democracy and respect for human rights and
fundamental freedoms enshrined in article 6(1) EU as a foundation of the union (par. 303).
Reasons:
EU is a new and autonomous legal order of international law (see Van Gend en Loos).
EU is a community based on the rule of law (par. 281).
Obligations imposed by an international agreement cannot have the effect of prejudicing that all
[EU] acts must respect fundamental rights (par. 285).
Interactions between PIL and EU law:
CJEU, Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat v Council and Commission:
Context:
War against terror (Taliban, al-qaida, Osama bin Laden).
Strategy: cutting terrorist group off finances.
Implementation: UN Security Council Resolutions:
Security Council Resolution 1267 (1999) on the Taliban:
All state must freeze funds or other financial resources that are made available to or
for the benefit of the Taliban.
Determined by a Committee of the UN Security Council, composed of all its
members, on a case-by-case basis.
Extended later to al-Qaeda, Osama bin Laden.
SC resolutions are binding upon all UN members (article 25 of the UN Charter).
Implementation of UNSC resolution in Europe:
Need for an EU act:
Free movement of capital is protected under article 63 TFEU.
Differences between member states would create barriers to the free movement of
capital.
EU Regulation (EC) no 337/2000 concerning a freeze of funds and other financial
resources (replaced by Regulation (EC) No 467/2001, replace by Regulation (EC) No
881/2002).
Annex to be amended by the Commission whenever the UNSC Committee declared new
natural or legal persons to be subject to a freezing of funds.
What happened?
UNSC Sanctions Committee:
Adding Mr Yassin Abdullah Kadi and the Al Barakaat International Foundation (having its
seat in Sweden) on the list (11/2001).
EU Commission added shortly thereafter both to the Annex I of Regulation (EC) 467/2001 by
several Commission regulations.
Kadi and Al Barakaat lodged actions for annulment of the EU regulations at the CJEU (on the
basis of article 263 TFEU).
Annulment of the EU regulations?
On which basis could it be annulled?
Principle of effective judicial protection (right to be heard).
Right to property.
If annulled, the EU member states fail at meeting their obligations under article 25 of the UN
Charter.
Does the EU legal order have to absolutely accept international law (especially the binding force of
UNSC resolutions? Or does it have to protect its fundamental rights?).
Solving conflicts:
Article 103 UN Charter: in the event of a conflict between the obligations of the members of the
United Nations under the present Charter and their obligations under any other international
agreement, their obligations under the present Charter shall prevail.
It seems that the rank decides and that the UN Security Council Resolution prevails over the
fundamental rights protected under the EU Treaties.
Position supported by the GC in Kadi.
CJEU in Kadi:
No derogation from the principles of liberty, democracy and respect for human rights and
fundamental freedoms enshrined in article 6(1) EU as a foundation of the union (par. 303).
Reasons:
EU is a new and autonomous legal order of international law (see Van Gend en Loos).
EU is a community based on the rule of law (par. 281).
Obligations imposed by an international agreement cannot have the effect of prejudicing that all
[EU] acts must respect fundamental rights (par. 285).
