The CA supported the General Court's finding and referred to other cases which confirmed that there

was a constitutional guarantee that EU measures implementing restrictive measures decided at

international level did not enjoy immunity from the jurisdiction of the EU Courts. The CA said that,
without the primacy of the UNSC resolution being called into question, the requirement that EU
institutions should pay due regard to UN institutions, must not result in there being no review of the
lawfulness of the EU measures in the light of the fundamental rights which are an integral part of EU law
[Paras. 66 & 67].

At no time did the CA appear to consider that this was a case of applying judicial review, by the back-
door, to the decisions of a non-judicial body, which is the UN Security Council . But as the several Kadi
cases have shown, the European Courts will not accept that they do not have the right to exercise a
judicial review over the EU's implementation of UNSC decisions. This is in spite of the fact that the UNSC
has reiterated constantly, that sanctions measures are “preventative in nature and are not reliant upon
criminal standards set out under national laws”. The EU put forward this “preventative nature” point
[see Para 75] but Kadi's response [Para 89] was that as he had been “subject to [these measures] for a
very long time” that they had become punitive. The CA did not take up this point but instead, stated that
because of its preventative nature, the EU Courts must ensure that at least one of the reasons for listing
constituted in itself, sufficient basis to support the listing

The CA stated that there is an express obligation for the EU Courts to ensure the review, in principle the
full review, of the lawfulness of all EU acts in the light of the fundamental rights, which rights include
respect of the rights of defence and the right of effective judicial protection – as these formed an
integral part of the EU legal order. Such a review covers the review of the measures designed to give
effect to UNSC resolutions under Chapter VII of the UN Charter [Paras. 97 & 98].

In Kadi's case, the CA said that it was necessary to determine whether the requirements relating to the
maintenance of international peace and security while respecting international law, specifically the
principles of the UN Charter, and that the fact that Kadi and the EU Courts did not have access to the
information and evidence relied on against him, constituted an infringement of the right of defence and
right to effective judicial protection [Para 103]. In that regard, the CA noted that the purposes and
principles of the UN included respect for human rights [Para. 104].

The CA noted that Kadi's initial listing was based on an OFAC decision which identified Kadi as a
'Specially Designated Global Terrorist' [Para 109]. ANALYSIS: It should be borne in mind that when Kadi
was listed on 17 October 2001, the information provided for each listing submission was minimum. This
was due to the “after-shock” of 9/11 during which time, there appeared to be a momentum to list
anyone known or associated with Al-Qaida and thereby, 56 individuals and 68 entities were placed on
the List in 2001. At the time, there did not appear to be much else required other than some
information on the activities of the proposed name from the designating State and the consensus of the
15 UNSC members for a listing.
The CA said that after Kadi had provided his comments to the NS, the competent EU authority was
“under an obligation to examine, carefully and impartially”, whether the alleged reasons [in the NS]
were well-founded, in light of Kadi's comments and any exculpatory evidence [Para 114]. The CA also
said that in that context, the EU authority should, having regard to the content of the comments, assess
whether or not it was necessary to seek the Sanctions Committee's assistance to obtain information or
evidence, confidential or not, to enable the EU authority to “discharge its duty of careful and impartial
examination” [Para 115]. The CA said that the EU authority was obliged to ascertain whether the NS was
sufficiently detailed and specific in identifying the reasons as to why [Kadi] must be subject to restrictive
measures

ANALYSIS: It appears that the CA 's reading of Article 1 on the UN Charter's purposes and principles,
which refer to respect for human rights and fundamental freedoms, is that this gives basis for equating
the same weight that the EU Courts give the EU Treaty's protection of the individual's rights seemingly
over that of the international community. If so, this appears to be a reading of Article 1 of the UN
Charter which does not take into account the UNSC's mandate under Article 24 of the UN Charter, of the
maintenance of international peace and security. 25.

ANALYSIS: At the same time, the CA's reading of the UN Charter is also that under Article 24, the UNSC
discharges its duties in accordance with the purposes and principles of the UN Charter, which includes
respect for human rights and fundamental freedoms under Article 1. [Para 104]. If the CA accepts that
the UNSC already takes into account respect for human rights in discharging its duties, then it should
follow that UNSC decisions are in keeping with respect for human rights and therefore should not need
to come under judicial review, especially by the back-door.

SLIDE 5

The CA seems to have given little weight to all the changes in particular, the annual reviews and
Ombudsperson mechanism that only exists in the Al-Qaida sanctions regime, and which does not exist
for any of the other sanctions regimes. This could have grave implications regarding the other sanctions
regimes should a legal challenge be mounted.

Slide 10

Indeed the ECJ can be seen to have raised the bar extremely high: it seems that nothing short of a full-
blown court procedure will be enough to solicit the EU courts’ deference in favour of review at UN level.
No doubt this should be a welcome development—and a justified one at that. It seems however that all
this pressure, after procuring some progress, is now sending the Security Council into regression and
may end up being counterproductive. Indeed, in order to avoid challenges in domestic and other courts,
the Security Council has started to make its sanctions regimes less and less targeted: in blunting the
identification of those targeted, the Security Council makes it more difficult for those affected to
challenge the measures in domestic or regional international fora. The Council re-situates the game on
the intergovernmental level, where it is much stronger, no less so on account of Article 103 UN Charter.
It remains to be seen what balance will be struck in the end. If there is an end—it may be showdown
for Kadi, but showdown for UN Security Council ‘terrorist’ sanctions it is definitely not.