Type: Opinions of Advocate General

Authority: European Authorities: Euopean Communities' Court of Justice

Date: 01/16/2008

Subject: The Advocate General propose that the Court should annul not only the judgment of the Court of First Instance, because it is vitiated by an error in law, but also Regulation (EC) No 881/2002, in so far as it concerns Mr. Kadi. In particular, the Advocate General affirms that the Court of First Instance made a mistake concluding that the combined effect of Articles 60 EC, 301 EC and 308 EC gave the Community power to adopt the contested regulation. The Court of First Instance erred in finding that the Community Courts had only limited jurisdiction to review the regulation. The Court of justice, acting as the constitutional court of the municipal legal order that is the Community, cannot turn its back on the fundamental values that lie at the basis of the Community legal order and which it has the duty to protect. The Advocate General notes that the relationship between international law and the Community legal order is governed by the Community legal order itself and that international law can only take effect under the conditions prescribed by the constitutional principles of the Community. Foremost of these principles is that the Community is based on respect for fundamental rights and the rule of law. The Advocate General affirms that the claim that a measure is necessary for the maintenance of international peace and security cannot operate so as to silence the general principles of Community law and deprive individuals of their fundamental rights. On the contrary, he argues that when the risks to public security are believed to be extraordinarily high and the pressure to take measures that disregard individual rights is particularly strong, it is the duty of the courts to uphold the rule of law with increased vigilance. In his opinion, the Community Courts have jurisdiction to review whether the contested regulation complies with fundamental rights as recognised by Community law. The Advocate General proposes that the Court itself should give final judgment on the question of whether the regulation infringes Mr Kadi’s fundamental rights. He concludes that the regulation in question infringes Mr Kadi’s right to property, his right to be heard and his right to effective judicial review. The Advocate General states that, given that there is no mechanism of judicial control by an independent tribunal at the level of the United Nations, the Community cannot dispense with proper judicial review proceedings when implementing the Security Council resolutions. In so doing, the resulting absence of any possibility for Mr Kadi to seek an independent review infringes his fundamental rights and cannot be permitted in a Community based on the rule of law. Consequently the regulation should be annulled in so far as it concerns him.

Parties: Yassin Abdullah Kadi c/ Consiglio dell’Unione europea e Commissione delle Comunità europee

Classification: Freedoms - Art. 17 Right to property - Justice - Art. 47 Justice: remedy - Justice: effective - Art. 48 Rights of defence

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Notices: Effectiveness of the Charter
The Advocate General recalled articles 41 and 47 of the Charter in footsnotes.