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European Court Of Justice: Yassin Abdullah Kadi And Al Barakaat International Foundation V. Council Of The European Union And Commission Of The European Communities

Published online by Cambridge University Press:  27 February 2017

August Reinisch
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Type
Case Report
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International Legal Materials , Volume 47 , Issue 6 , December 2008 , pp. 923 - 967
Copyright
Copyright © American Society of International Law 2008

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References

Endnotes

* This text was reproduced and reformatted from the text appearing at the text appearing at the EUR-Lex Reference Center website: (visited October 10, 2008) < http://eur-lexxuropa.eu/lxUriServ/LexUriServ.do?uri=CELEX:62005J0402:EN:HTML >

page 925 note 1 Case T-315/01, Abdullah, Yassin Kadi v Council and Commission, 2005 E.C.R. 11–3649, 45 I.L.M. 81;Google Scholar Case T-306/ 01, Yusuf and Al Barakaat International Foundation v Council and Commission, (Eu. Ct. First Instance, September21, 2005) [hereinafter Kadi CFI].

page 925 note 2 Joined Cases C-402/05 P & C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission, European Court of Justice, 2008 O.J. (C 285) 2

pae 926 note 3 According to Article 16 of the Statute of the Court of Justice, the ECJ sits in a Grand Chamber consisting of eleven out of the total of 27 judges, instead of the normal chamber size of three or five judges,’ ‘when a Member State or an institution of the Communities that is party to the proceedings so requests.“

pae 926 note 4 Council 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-Qaeda Network and the Taliban, and Repealing Council Regulation (EC) No. 467/2001, 2002 O.J. (L 139) 9 [hereinafter Regulation 881/2002].

pae 926 note 5 Id. art. 2(1).

pae 926 note 6 On October 17 and November 9,2001, the Sanctions Committee pursuant to UN Security Council Resolution 1267, S.C. Res. 1267, U.N. Doc. S/Res/1267 (1999), published then names as persons whose assets were to be frozen according to ¶ 8(c) of UN Security Council Resolution 1333, S.C. Res. 1333, U.N. Doc. S/Res/1333 (2000).

pae 926 note 7 S.C. Res. 1730, U.N. Doc. S/RES/1730 (2006).

pae 926 note 8 According to Article 230(1) of the Treaty Establishing the European Community (TEC) “[t]he Court of Justice shall review the legality of acts adopted [by the Community institutions].” If it is found that a Community act is vitiated by any of the annulment grounds listed in Article 230(2) TEC, such as “lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers” the “Court of Justice shall declare the act concerned to be void;” See Treaty Establishing the European Community, Mar. 25,1957, 298 U.N.T.S. 11, amended by Treaty of Amsterdam, Oct. 2, 1997, 1997 O.J. (C 340) 1, amended by Treaty of Nice, Feb. 26, 2001, 2001 O.J. (C 80) 1, consolidated version reprinted in 2002 O.J. (C 325) 33.

pae 926 note 9 According to the Kadi CFI, supra note 1, ¶ 226, the Court had the power “to check, indirectly, the lawfulness of the resolutions of the Security Council in question with regard to jus cogens, understood as a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations, and from which no derogation is possible.“

pae 926 note 10 Article 301 TEC provides:’ ‘Where it is provided, in a common position or in a joint action adopted according to the provisions of the Treaty on European Union relating to the common foreign and security policy, for an action by the Community to interrupt or to reduce, in part or completely, economic relations with one or more third countries, the Council shall take the necessary urgent measures.” Article 60(1) TEC provides: “If, in the cases envisaged in Article 301, action by the Community is deemed necessary, the Council may, in accordance with the procedure provided for in Article 301, take the necessary urgent measures on the movement of capital and on payments as regards the third countries concerned.“

pae 926 note 11 Article 308 TEC provides: “If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community, and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.“

pae 926 note 12 See also Article 6(2) Treaty On European Union (TEU), Feb. 7, 1992, amended by Treaty of Amsterdam, Oct. 2, 1997, 1997 O.J. (C 340) 1, amended by Treaty of Nice, Feb. 26, 2001, 2001 O.J. (C 80) 1, consolidated version reprinted in 2002 O.J. (C 325) 5, which provides that “[t]he Union shall respect fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, as general principles of Community law,” and is widely regarded as a codification of the ECJ's case law making fundamental rights obligatory for Community institutions in cases such as Case 29/69, Stauder v. Stadt Ulm,1969 E.C.R. 419, Case 11/70, Internationale Handelsge sellschaft v. Einfuhr und Vorratsstelle für Getreide und Fut termittel, 1970 E.C.R. 1125, Case 4/73, Nold v. Commission, 1974 E.C.R. 491, and Case 44/79 Hauer v. Land Rheinland Pfalz, 1979 E.C.R. 3727.

pae 926 note 13 See supra note 7.

pae 926 note 14 U.N. Charter art. 25.

pae 926 note 15 Internationale Handelsgesellschaft v Einfuhr und Vorratss telle fur Getreide und Futtermittel, 2 Common mkt. L. Rev. 540(1974), 93 I.L.R. 362, German Federal Constitutional Court.

pae 926 note 16 See supra note 12.

pae 926 note 17 Federal Tribunal Nov. 14, 2007, Case No. 1A 45/2007 Nada (Youssef) v. State Secretariat for Economic Affairs and Federal Department of Economic Affairs Administrative Appeal Judgment, ILDC 461 (CH 2007), BGE 133 II 450, (Switzerland).