P Kadi and Al Barakaat v Council [2008] ECR I-6351

• Applicant challenged a Community regulation which froze the funds of those suspected of supporting Al-Qaeda, which was passed pursuant to a SC resolution that had established a Sanctions committee to designate who should be subject to such freezing orders. 

• Applicant was on the list & his EU assets were frozen in accord with the Community regulation. He argued that he was never involved in the provision of financial support for terrorism.

• The CFI held that the contested regulation could be based on Articles 60, 301 & 308 EC.

  • CFI declined to exercise generalised JR of the contested Community regulation for compliance with fundamental rights as protected by the Community legal order, since this would entail indirect review of the Security Council Resolutions for compliance with those rights, but the CFI held that it could review the Security Council Resolutions for compliance with jus cogens, since this was a body of higher rules of international law binding on all, including the UN.

  • This did not however avail Applicant, even though there was no right to be heard before the SC stuck someone on its list & even though there was no judicial remedy available to Applicant

    • Case highlights the pressing need for admin law safeguards at an international level (Kingsley). 

• But CFI distinguished Kadi in Modjahedines (2006), where Applicant’s funds were frozen pursuant to a Community regulation enacted in furtherance of a UNSC resolution, but there was nothing at UN level that specifically named Applicant organisation as one that supported terrorism, with the decision instead being made by the EC pursuant to its own regulation.

• CFI held that this was enough to distinguish this case from Kadi & the normal principles of JR, such as the obligation to state reasons, the right to effective judicial protection & the right to a fair hearing could, in principle, be applied to the instant case. 

RELATED CASES

• Kingsley v United Kingdom ECtHR Judgment