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Published online by Cambridge University Press: 27 October 2017
The judgment of the Court of Justice of the European Union in Kadi is of defining constitutional importance. The Court understood the EU Treaties (at the time, the EC Treaty) as establishing their own constitutional space, asserted the autonomy of EU law vis-à-vis international law and held that responses to emergencies should be handled through, rather than outside, the bounds of the EU Treaties. The judgment is predicated on liberal democratic ideals and views respect for legality as a sine qua non in times of emergency. This chapter seeks to discuss selected case law developments after Kadi. It focuses on the effect of invalidity of sanctions on third parties, issues pertaining to the validity and interpretation of Council Regulation 881/2002/EC, economic sanctions against nuclear proliferation and corresponding developments in the case law of the UK Supreme Court. It does not deal exhaustively with post-Kadi case law. Section I provides a brief introduction to the judgment in Kadi. Section II explores the effect of the ruling on third parties. Section III discusses a selection of recent case law of the Court of Justice and the General Court, and section IV explores in some detail the judgment of the UK Supreme Court in Jabar Ahmed.
1 Joined Cases C-402/05 P & C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351 (‘Kadi’).
2 Council Regulation 881/2002/EC of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, [2002] OJ L139/9.
3 The chapter does not deal exhaustively with the case law of the General Court generated by sanctions lists introduced by the European Community and not by the Sanctions Committee of the UN. For these cases, see, among others, Case T-284/08 People’s Mojahedin Organization of Iran v Council (OMPI III) [2008] ECR II-3487; Case T-256/07 People’s Mojahedin Organisation of Iran v Council (OMPI II) [2008] ECR II-3019; Case T-228/02 Organisation des Modjahedines du peuple d’Iran v Council (OMPI I) [2006] ECR II-4665.
4 [2010] UKSC 2; [2010] 2 WLR 378.
5 Arts 60(1) and 301 have now been replaced by Arts 75 and 215 TFEU respectively, which provide expressly for the imposition of sanctions against non-State actors. Art 308 has been replaced by Art 352 TFEU.
6 Kadi, above n 1, paras 287–88.
7 Case 294/83 Les Verts v Parliament [1986] ECR 1339, para 23; Kadi, above n 1, para 281.
8 Kadi, above n 1, para 308.
9 Ibid, paras 345ff.
10 The judgment has generated a huge bibliography. See, among others, Búrca, G de, ‘The EU, the European Court of Justice and the International Legal Order after Kadi’ (2009) 51 Harvard International Law Journal Google Scholar, available at SSRN: <http://ssrn.com/abstract=1321313>, accessed 30 July 2010; Halberstam, D and Stein, E, ‘The United Nations, the European Union, and the King of Sweden: Economic Sanctions and Individual Rights in a Plural World Order’ (2009) 46 CML Rev 13 Google Scholar, available at SSRN: <http://ssrn.com/abstract=1312082>, accessed 30 July 2010; see the contributions in the symposium on the Kadi judgment (2009) 28 YEL 531–700; Murkens, JE Khushal, ‘Countering Anti-Constitutional Argument: The Reasons for the European Court of Justice’s Decision in Kadi and Al Barakaat’ (2008–2009) 11 CYELS 15 Google Scholar; Tridimas, T and Gutierrez-Fons, JA, ‘EU Law, International Law and Economic Sanctions against Terrorism: The Judiciary in Distress?’ (2009) 32 Fordham Journal of International Law 660 Google Scholar; Tridimas, T, ‘Terrorism and the ECJ: Empowerment and Democracy in the EC Legal Order’ (2009) 34 EL Rev 103–26Google Scholar.
11 See, in this context, the work of the International Law Commission on ‘Fragmentation of international law: difficulties arising from the diversification and expansion of international law’, available at <http://untreaty.un.org/ilc/summaries/1_>, accessed 30 July 2010. Contributions on the subject are numerous. For a concise account, see the conclusions of the ILC’s study group submitted to the UN General Assembly, available at <http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/1_9_2006.pdf>, accessed 30 July 2010, and Hafner, G, ‘Pros and Cons Ensuing from the Fragmentation of International Law’ (2004) 25 Michigan Journal of International Law 849 Google Scholar.
12 Case 11/70 Internationale Handelsgesellschaft v Einfuhr und Vorratsstelle Getreide [1970] ECR 1125.
13 For a more detailed discussion of process rights, see the judgments of the General Court in the OMPI cases referred to above n 3.
14 One may presume that the other persons included in the list were in the same position as Mr Kadi and Al Barakaat, namely that their fundamental rights had also been infringed. It is clear, however, that the Court could not have extended the scope of its ruling beyond the applicants. Mr Kadi and Al Barakaat had locus standi to challenge the regulation only insofar as it related to them. Any attempt to launch a more general attack would have stumbled upon the lack of direct and individual concern. Furthermore, the Court could adjudicate only within the limits of the action brought by the parties and did not have jurisdiction to rule ultra petita: see Case C-310/97 Commission v AssiDöman Kraft Products AB and others (Woodpulp III ) [1999] ECR I-5363. Neither would it be possible for the Court to rule on whether the process rights of other listed persons had been breached without hearing any evidence in relation to them.
15 As stated above, the Court of Justice decided to maintain the effects of the Regulation temporarily in force and gave the Council three months to comply with the process rights of the applicants. See Kadi, above n 1, paras 373–76. Following the judgment, the Commission, by Regulation 1190/2008/EC, [2008] OJ L322/25, re-included Mr Kadi in the sanctions list. This Regulation has been challenged before the CFI (now the General Court), inter alia, on the ground that it suffers from the same procedural irregularities as Regulation 881/2002/EC: see Case T-85/09 Kadi v Commission, introduced on 26 February 2009.
16 AssiDöman, above n 14, para 56.
17 Case C-188/92 TWD v Germany [1994] ECR I-833.
18 See, eg Case C-178/95 Wiljo NV v Belgian State [1997] ECR I-585.
19 Case C-239/99 Nachi Europe GmbH v Hauptzollamt Krefeld [2001] ECR I-01197.
20 See Case C-241/95 The Queen v Intervention Board for Agricultural Produce ex parte Accrington Beef and Others [1996] ECR I-6699; Case C-408/95 Eurotunnel SA v SeaFrance [1997] ECR I-6315.
21 See section II.B. below.
22 By contrast, it appears that a third party which is adversely affected by the Regulation may challenge its validity via the preliminary reference procedure insofar as it has an interest in the outcome of the proceedings. This derives from the nature of Regulation 881/2002/EC as a measure of general application. In Kadi, above n 1, paras 241ff, the Court of Justice confirmed that although listed persons have direct and individual concern, since they are expressly named in the Annex to the Regulation, that does not detract from its character as a true regulation: it prohibits anyone from making available funds or economic resources to the listed persons, and is thus addressed in a general and abstract manner to all persons who might hold the funds in question. See also Case T-306/01 Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533, paras 186–88.
23 The case law states that a party may not, by means of an action for damages, circumvent the inadmissibility of an application for annulment which concerns the same instance of illegality and has the same financial end in view: see, eg, AssiDöman, above n 14, para 62; Joined Cases C-199 and C-200/94 P Pevasa and Impesca v Commission [1995] ECR I-3709. It would thus not be possible for a listed person to obtain release of his funds or compensation equal to the amount of the funds frozen by means of an action in damages, although he could obtain compensation for any damage arising as a result of the freezing of his assets. For the chances of success of an action in damages, see T Tridimas and JA Gutierrez-Fons, above n 10, at 702ff.
24 See TWD, above n 17, para 13; AssiDöman, above n 14, para 57.
25 See AssiDöman, above n 14, para 61.
26 See section II.C. below.
27 Above, n 4. See, eg, paras 5 and 39 per Lord Hope. See also R(M) v HM Treasury [2008] 2 All ER 1097.
28 Case C-550/09 E and F, judgment of 29 June 2010, nyr.
29 [2001] OJ L344/70.
30 [2001] OJ L344/93.
31 [2002] OJ L116/33.
32 See Case T-228/02 Organisation des Modjahedines du people d’Iran v Council, [2006] ECR II-4665 (OMPI I); Case T-253/04 KONGRA-GEL [2008] ECR II46; Case T-229/02 Osman Ocalan on behalf of PKK v Council [2008] ECR II-45; Case T-327/03 Stichting AlAqsa v Council [2007] ECR II-79; and Case T-47/03 Sison v Council [2007] ECR II-79.
33 [2007] OJ L169/58.
34 E and F, above n 28, para 46.
35 Ibid, paras 49–50.
36 Ibid, para 51. This is because inclusion in the sanctions list, as provided by Regulation 2580/2001/EC, is of general application. It serves, together with that regulation, to impose on an indeterminate number of persons an obligation to comply with specific restrictive measures against DHKP-C.
37 Ibid, para 52.
38 Ibid, para 56.
39 Note that the questions referred concerned only the legality of the listing of DHKP-C by successive Council decisions until the entry into force of Decision 2007/445/EC. By contrast, the legality of the latter decision and subsequent decisions by which DHKP-C was maintained in the list was not in issue in the proceedings. The Court therefore did not have the opportunity to consider whether the statement of reasons for the listing of DHKP-C provided in Decision 2007/445/EC was adequate.
40 E and F, above n 28, para 59; Opinion of A-G Mengozzi of 17 May 2010 in that case, para 117. See, for previous case law, Case 63/83 Kirk [1984] ECR 2689, paras 21 and 22; Case C-331/88 Fedesa and Others [1990] ECR I-4023, para 44; and Joined Cases C-387/02, C-391/02 and C-403/02 Berlusconi and Others [2005] ECR I-3565, paras 74–78. Note, however, that Decision 2007/445/EC could have retroactive effect outside the sphere of criminal law. As the General Court pointed out in Case T-256/07 People’s Mojahedin Organisation of Iran v Council (OMPI II) [2008] ECR II-3019, para 65, when a measure has been annulled for procedural defects, the institution concerned is entitled to adopt afresh an identical measure, this time observing the formal and procedural rules in question, and even to give that measure retroactive effect, if that is essential to the attainment of the public interest objective pursued and if the legitimate expectations of the persons concerned are duly protected. Thus, where the inclusion of a person in the sanctions list is annulled for procedural errors, the Council has the power to adopt a new decision with retroactive effect reinstating the person concerned in the list.
41 See Opinion of A-G Mengozzi of 17 May 2010 in Case C-550/09 E and F, above n 28, para 96.
42 Ibid, para 97.
43 Ibid, para 98.
44 Its other objectives being to give an opportunity to the parties involved of defending their rights, and to third persons of ascertaining the circumstances in which the institution concerned applied the Treaty: see, eg, Case 24/62 Germany v Commission [1963] ECR 63, 69; Case 294/81 Control Data v Commission [1983] ECR 911, para 14; Joined Cases T-79/89, etc BASF AG and Others v Commission [1992] ECR II-315, para 66.
45 Case 18/57 Nold v High Authority [1959] ECR 41; Case 185/85 Usinor v Commission [1986] ECR 2079, para 19; Case C-166/95 P Commission v Daffix [1997] ECR I-983, para 24. The Community judicature is, however, not under a duty to raise the issue on its own motion in all cases and, depending on the circumstances, it may reject as inadmissible a plea that the contested act is insufficiently reasoned if it is not submitted in time: Case T-106/95 Fédération Française des Sociétés d’Assurances (FFSA) and Others v Commission [1997] ECR II-229, para 62.
46 See, eg, Case T-106/95 Fédération Française des Sociétés d’Assurances (FFSA) and Others v Commission [1997] ECR II-229, paras 48–49; Case T-16/91 Rendo and Others v Commission [1992] ECR II-2417, para 131.
47 E and F, above n 28, para 52.
48 See Opinion of A-G Mengozzi, ibid, paras 86–87.
49 The case law of the European Court of Human Rights (ECtHR) does not appear to have dealt specifically with this issue. More generally, it accepts that reasonable limitation periods in civil proceedings serve legal certainty and finality, and are compatible with Art 6 ECHR, although an unduly short limitation period may give rise to a violation: see, eg, Perez de Rada Cavanilles v Spain (1998) 29 EHRR 109; Dobbie v United Kingdom, App no 28477/95, noted [1997] EHRLR 166. The case law has also accepted that although Art 6 ECHR does not guarantee a right of access to a court with power to invalidate or override a legislative measure, it does require that where a measure, albeit not formally addressed to an individual, affects his civil rights or obligations, whether by reason of certain attributes peculiar to him or by reason of a factual situation which differentiates him from all other persons, Art 6(1) may require that the substance of that measure is capable of being challenged before a court or tribunal: Posti and Rahko v Finland, App no 27824/95 (2003) 37 EHRR 6, judgment of 24 September 2002, para 53. These authorities are not of direct relevance to the situation under examination. It is submitted that the extension of TWD to criminal proceedings may well be viewed as a restriction of the right of access to court which is disproportionate and runs counter to the right to equality of arms, since the defendant is deprived of the opportunity to dispute the evidence and the grounds raised against him. It may also be a violation of the right to non-discrimination provided in Art 14 ECHR.
50 Case C-222/04 Cassa di Risparmio di Firenze [2006] ECR I-289, paras 72–73.
51 This is borne out by the judgment in E and F, itself, where the Court of Justice did not declare any Council decisions invalid but held that, in respect of the period prior to the adoption of Decision 2007/445/EC, the inclusion of DHKP-C on the list was illegal and therefore could not serve as a basis for the criminal conviction of the defendants: see E and F, above n 28, para 62.
52 See Boddington v British Transport Police [1999] 2 AC 143. Note, however, that this case does not stand as authority that collateral challenge must always be available in criminal proceedings. The House of Lords established a default rule but accepted that there could be cases where a specific statute may intend to exclude or limit indirect challenge. See R v Wicks [1998] AC 92. It would thus be a matter of statutory construction, but the burden to persuade the court that the general rule must be set aside lies with the prosecution: see Craig, PP, Administrative Law, 5th edn (London, Sweet & Maxwell, 2003) 690 Google Scholar. In Interfact Ltd v Liverpool City Council and R v Budimir & Ors [2010] EWCA Crim 1486, the Criminal Division of the Court of Appeal held that a national court does not have to re-open a criminal conviction on the ground that the statute creating the offence was in breach of an EU directive unless substantial injustice had occurred. This case, however, is not directly relevant. It raises the issue of whether an existing conviction by a court of law can be reopened and not whether an argument can be raised in pending criminal proceedings. Also, it pertains to the finality of a criminal conviction and not an administrative decision.
53 See Judgment of the Greek Court of Cassation No 782/79.
54 Art 62 of the Code of Criminal Procedure also provides that a judgment of a civil court on an issue which relates to a criminal trial does not bind the criminal court and is assessed independently at its discretion. This applies by analogy also to administrative law issues which are relevant to a criminal trial, although a criminal court is bound by a ruling of an administrative court declaring an administrative act invalid. See further Spiliotopoulos, E, Elements of Greek Administrative Law, 9th edn (Athens, Sakkoulas, 1999) 115 Google Scholar; Karras, A, Criminal Procedure, 2nd edn (Athens, Sakkoulas, 1998) 113ffGoogle Scholar.
55 Case T-318/01 Othman v Council [2009] ECR II-1627.
56 Joined Cases C-399 and C-403/06 P Hassan and Ayadi v Council and Commission, judgment of 3 December 2009, nyr.
57 Above n 2.
58 Above n 55.
59 Ibid, paras 97–98.
60 Ibid, paras 72 and 73.
61 Above n 56.
62 Case T-40/04 Hassan v Council and Commission [2006] ECR II-52; Case T-253/02 Ayadi v Council [2006] ECR II-2139.
63 The General Court held that, since the sanctions list originated in UNSC resolutions, the General Court did not have jurisdiction to examine the compatibility of Regulation 881/2002/ EC with fundamental rights as they are protected in the EU legal order but only as they are recognised under jus cogens, and that, in the circumstances, the requirements of jus cogens had been met.
64 [2009] OJ L269/20.
65 Hassan and Ayadi, above n 56, para 61.
66 Ibid, para 62.
67 Ibid, para 63. On that ground, the Court distinguished the contested regulation from the measure at issue in its earlier order in Case C-123/92 Lezzi Pietro v Commission [1993] ECR I-809.
68 Case C-340/08 The Queen on the application of M and Others v HM Treasury, judgment of 29 April 2010, nyr (M v HM Treasury ). For a previous case pertaining to the interpretation of the sanctions regime, see Case C-117/06 Möllendorf-Niehuus [2007] ECR I-8361.
69 The Court held that in the Spanish, French, Portuguese and Romanian texts, the prohibition referred to the ‘use’ of funds for the benefit of a listed person. These versions did not support the argument that, by making social security benefits available to the spouses of listed persons, the authorities used those funds for the benefit of the latter. A third group of language versions, such as those in German and Italian, did not fall within either of the above categories and used their own terminology. See M v HM Treasury, above n 68, para 43.
70 Ibid, para 49.
71 Ibid, paras 54–58.
72 Ibid, paras 59–61.
73 Ibid, para 64.
74 Ibid, paras 64–66.
75 The Court also stated that the narrow interpretation of Art 2(2) did not render the exception in Art 2a superfluous. That exception applies in cases where funds are made available directly or indirectly to a listed person and not to a third party, since, in such cases, the listed person can decide how to use those funds, and this in turn involves a danger of their being diverted for terrorist purposes: see ibid, para 71.
76 Ibid, paras 58–59.
77 These conditions were the following: (a) the benefits had to be paid into a bank account from which the spouse concerned could draw only £10 in cash for each member of the household; other payments had to be made by debit card; (b) the spouse concerned had to send a monthly account to the Treasury detailing all her expenditure and enclosing receipts for the goods purchased and a bank statement; (c) the licence included a warning to the spouse that it was a criminal offence to make funds available to her husband since he was a listed person. See the Al-Qa’eda and Taliban (United Nations Measures) Order 2002 (SI 2002/111), Art 7.
78 Joined Cases T-246 & T-332/08 Melli Bank plc v Council [2009] ECR II2629 (Melli Bank).
79 [2008] OJ L163/29.
80 [2007] OJ L103/1.
81 Melli Bank, above n 78, paras 63–65.
82 Ibid, para 66.
83 Ibid, para 103.
84 Ibid, paras 71, 17 and 108.
85 Ibid, para 121.
86 See ibid, para 121, referring to Case 48/69 Imperial Chemical Industries v Commission [1972] ECR 619, para 133, and Case C-73/95 P Viho v Commission [1996] ECR I-5457, para 16.
87 Melli Bank, above n 78, para 123.
88 Ibid, para 124.
89 Ibid, para 125.
90 Ibid, paras 103 and 138.
91 Ibid, paras 111–12.
92 The quote in the heading comes from Bingham, Lord, ‘The Case of Liversidge v Anderson: The Rule of Law Amid the Clash of Arms’ (2009) 43 The International Lawyer 33, 38Google Scholar, where he stated: ‘[W]e are entitled to be proud that even in that extreme national emergency there was one voice—eloquent and courageous—which asserted older, nobler, more enduring values: the right of the individual against the state; the duty to govern in accordance with law; the role of the courts as guarantor of legality and individual right; the priceless gift, subject only to constraints by law established, of individual freedom.’ It was cited with approval by Lord Hope in HM Treasury v Mohammed Jabar Ahmed and others [2010] UKSC 2 (Jabar Ahmed), at [6].
93 Above n 92.
94 One of the appellants, identified as appellant G, had been designated under both the TO and the AQO.
95 R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, 131; see also R v Secretary of State for the Home Department, ex parte Pierson [1998] AC 539, 573 per Lord Browne-Wilkinson.
96 Ex parte Simms, above n 95, 131.
97 Jabar Ahmed, above n 92, at [137].
98 Ibid, at [60].
99 Ibid, at [125].
100 Ibid, at [174].
101 Ibid, at [176].
102 Ibid, at [50].
103 R (Al-Jedda) v Secretary of State for Defence [2008] AC 332.
104 Joined Cases 71412/01 Behrami and Behrami v France, and 78166/01 Saramati v France, Germany and Norway (2007) 45 EHRR SE10.
105 Jabar Ahmed, above n 92, at [93]–[98].
106 Ibid, at [77]–[80].
107 Ibid, at [149].
108 Ibid, at [199].
109 Ibid, at [204].
110 Ibid, at [186].
111 Ibid, at [45].
112 Ibid, at [203], per Lord Brown.
113 See ibid, at [230], per Lord Mance.
114 All their Lordships appeared to agree that a freezing of funds could be introduced by primary legislation. Whether it could also be introduced by delegated legislation which gave a greater role to Parliament, eg an Order in Council which was subject to the affirmative resolution procedure, remains an open question, although it is clear from the judgment that such a move would not be viewed favourably by the Supreme Court.
115 See Case C-260/89 ERT [1991] ECR I-2925.
116 See section IV.D. below.
117 Jabar Ahmed, above n 92, at [45].
118 Note, however, that the principle of legality may not go as far as the duty of consistent interpretation imposed on English courts by s 3(1) of the Human Rights Act 1998. That section requires that, so far as it is possible to do so, legislation must be read and given effect to in a way which is compatible with the Convention rights. Lord Phillips stated that the principle of legality does not permit a court to disregard an unambiguous expression of Parliament intention, although in some cases s 3(1) has been understood as enabling courts to do precisely that: see ibid, at [117].
119 Ex parte Simms, above n 95, 131, cited with approval by Lord Phillips in Jabar Ahmed, above n 92, at [111].
120 See section I. above.
121 See, eg, Al-Jedda, above n 103, para 74, per Lord Hope.
122 Ibid, para 39, per Lord Bingham.
123 Jabar Ahmed, above n 92, at [104], per Lord Phillips.
124 Ibid, at [203].
125 Ibid, at [71].
126 Kadi, above n 1, para 288.
127 Case C-260/89 ERT [1991] ECR I-2925; Case C-368/95 Vereinigte Familiapress Zeitungsverlagsund Vertreibs GmbH v Bauer Verlag [1997] ECR I-3689; Case C-71/02 Herbert Karner Industrie-Auktionen GmbH v Troostwijk GmbH [2004] ECR I-3025.
128 Kadi, above n 1, para 303.
129 Ibid, para 304.