Judicial Review of European Anti‐Terrorism Measures—The Yusuf and Kadi Judgments of the Court of First Instance

• Published date: 01 January 2008
• Date: 01 January 2008
• DOI: http://doi.org/10.1111/j.1468-0386.2007.00402.x

Judicial Review of European

Anti-Terrorism Measures—The Yusuf

and Kadi Judgments of the Court of

First Instance

Christina Eckes*

Abstract: In the Yusuf and Kadi judgments of 21 September 2005, the Court of First

Instance endorsed the Community practice of sanctioning individuals blacklisted by the

United Nations (UN). It accepted that the Community uses its competence to adopt state

sanctions in combination with Article 308 EC to freeze the assets of civil persons, includ-

ing European citizens. The court also reduced its jurisdiction to a basic scrutiny of whether

jus cogens was violated. The Court of First Instance’s decisions can be criticised on various

grounds. First, the application of these Articles is contrary to the wording of the Treaty

and the case-law of the European Court of Justice (ECJ). Further, as a consequence of

the Court of First Instance’s judgments, decisions of the UN Sanctions Committee become

the supreme law within the EU, provided they meet the requirements of jus cogens as

def‌ined by the Court of First Instance. In addition, the individual is deprived of all

fundamental rights guaranteed under European law.

I Introduction

It is undisputed that every developed legal system must have a mechanism to review the

legality of measures adopted by its institutions. Only the perception of the necessary

degree of that review differs.

In two groundbreaking judgments, the Court of First Instance conceived of a

detailed concept of how and to what extent international sanctions against individuals

can and must be scrutinised under European law.1The court, on the one hand, rejected

the applicants’ claim that ‘[a]s a legal order independent of the United Nations, gov-

erned by its own rules of law, the European Union must justify its actions by reference

to its own powers and duties vis-à-vis individuals within that order’2and refrained from

exercising full review of European sanction instruments. On the other hand, the Court

* PhD student and visiting lecturer at King’s College London.

1Case T-315/01, Yassin Abdullah Kadi v Council and Commission [2005] ECR II-3649 and Case T-306/01,

Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533.

Both judgments are essentially identical in their relevant parts. Citations are therefore taken randomly

from one or both judgments.

2Kadi,at140.

European Law Journal, Vol. 14, No. 1, January 2008, pp. 74–92.

© 2008 The Author

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and 350 Main Street, Malden, MA 02148, USA

of First Instance almost assumed the role of an international legislator by creatively

def‌ining the role of the European courts in relation to United Nations (UN) law and by

laying down new rules of judicial review of acts implementing UN law. Additionally,

it explored new grounds in identifying the legal basis for the disputed Community

competence to adopt sanctions against individuals. Against both cases appeal was f‌iled

before the European Court of Justice (ECJ).3

The two main aims of this article are to demonstrate, f‌irst, that the Court of First

Instance’s construction of a Community competence for individual sanctions is unten-

able and, second, that the Court of First Instance limited its own jurisdiction based on

a misconception of the relationship between international and domestic law.

Initially, part II outlines the background of individual sanctions and the facts of the

two cases. Part III analyses the Court of First Instance’s f‌indings on the Community’s

competence for individual sanctions. Part IV looks more closely at the scope of the

judicial review the Court of First Instance carried out. Finally, part V deals brief‌ly with

the Court of First Instance’s examination of a possible infringement of fundamental

rights as they are protected by jus cogens. A conclusion f‌inalises the discussion.

II The Cases of Yusuf and Kadi

The applicants in the two cases here discussed were Mr Yusuf, a Swedish citizen of

Somali origin, Al Barakaat, which is Somalia’s largest money transfer system, and Mr

Kadi, an international businessman of Saudi Arabian citizenship. All three, Mr Yusuf,

Mr Kadi and Al Barakaat, found all of their f‌inancial interests within the European

Community (EC) frozen at a day’s notice, f‌irst by Regulation 467/20014and then by the

contested Regulation 881/2002.5The freeze was ordered without any limitation of time

or quantity; and, above all, the EC did not and does not provide any means for those

sanctioned to prove that they are innocent of any wrongdoing. The applicants allege

that they had never been involved in terrorism, nor had they f‌inancially supported

terrorism in any form.

The applicants in both cases were sanctioned as a consequence of the UN sanctions

regime in the f‌ight against terrorism in general, and more specif‌ically against Al-Qaida.6

Following the attacks on the US embassies in Nairobi and Dar-e-Salaam in 1998 the

UN Security Council had, in a series of resolutions,7requested the Taliban regime in

Afghanistan to extradite Usama bin Laden, to close all the terrorist training camps and

3C-402/05P, Kadi v Council and Commission, application of 11 February 2006 [2006] OJ C36/19;

C-415/05P, Yusuf and Al Barakaat International Foundation v Council and Commission, application of

25 February 2006, [2006] OJ C48/11.

4Council Regulation (EC) No 467/2001 of 6 March 2001 prohibiting the export of certain goods and

services to Afghanistan, strengthening the f‌light ban and extending the freeze of funds and other f‌inancial

resources in respect of the Taliban of Afghanistan, and repealing Regulation (EC) No 337/2000 [2001]

OJ L67/1.

5Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specif‌ic restrictive measures

directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and

the Taliban, and repealing Council Regulation (EC) No 467/2001 [2002] OJ L139/9.

6On the UN sanctions regime against Al-Qaida, see M. Chandler, Chairman of the Al-Qaida Sanctions

Monitoring Group, The United Nations Sanctions Regime against Al-Qaida, the Taliban and their Asso-

ciates, International Conference on Combating Terrorism—Military and Non-Military Strategies

(Singapore, 16–17 October 2003), available at http://www.pvtr.org/pdf/Michael_UN_Sanctions.pdf.

7UN Security Council documents S/RES/1189 (13 August 1998); S/RES/1193 (28 August 1998); and

S/RES/1214 (8 December 1998).

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