EU Law, International Law and Economic Sanctions Against Terrorism: The Judiciary in Distress?

This article seeks to examine the relationship between European Union law, international law, and the protection of fundamental rights in the light of recent case law of the European Court of Justice (ECJ) and the Court of First Instance (CFI) relating to economic sanctions against individuals. On 3 September 2008, the ECJ delivered its long-awaited judgment in Kadi and Al Barakaat on appeal from the CFI. In its judgment under appeal, the CFI had held that the European Community (EC) is competent to adopt regulations imposing economic sanctions against private organizations in pursuance of UN Security Council (UNSC) Resolutions seeking to combat terrorism; that although the EC is not bound directly by the UN Charter, it is bound pursuant to the EC Treaty to respect international law and give effect to UNSC; and that the CFI has jurisdiction to examine the compatibility of EC regulations implementing UNSC resolutions with fundamental rights not as protected by the EC but as protected by jus cogens. On appeal, following the Opinion of Maduro AG, the ECJ rejected the CFI\u27s approach. It held that UNSC resolutions are binding only in international law. It subjected the contested regulations to full review under EC human rights standards and found them in breach of the right to a hearing, the right to judicial protection and the right to property. Kadi and Al Barakaat is the most important judgment ever delivered by the ECJ on the relationship between EC and international law and one of its most important judgments on fundamental rights. It is imbued by constitutional confidence, commitment to the rule of law but also some skepticism towards international law. In the meantime, the CFI has delivered a number of other judgments on anti-terrorist sanctions assessing the limits of the emergency constitution at European level. The purpose of this paper is to examine the above case law and explore the dilemmas and tensions facing the EU judiciary in seeking to define and protect the EU\u27s distinct constitutional space. It is divided as follows. It first looks at the judgment in Kadi. After a short presentation of the factual and legal background, it explores the question whether the EU has competence to adopt smart sanctions. It then examines whether the EU is bound by resolutions of the Security Council, whether the ECJ has jurisdiction to review Community measures implementing such resolutions and the applicable standard of judicial scrutiny. It analyzes the contrasting views of the CFI, the Advocate General, and the ECJ taking account also of the case law of the European Court of Human Rights (ECtHR). Further, it explores the consequences of annulling the contested regulation. It then turns to discussing CFI case law in relation to sanctions lists drawn up not by the UN Security Council but by the EC. The paper concludes by welcoming the judgment of the ECJ. Whilst its reasoning on the issue of Community competence is questionable, once such competence is established, it is difficult to support the abrogation of Community standards for the protection of fundamental rights. Such standards should ensure procedural due process whilst recognizing the importance of public security

EU Law, International Law, and Economic Sanctions Against Terrorism: The Judiciary in Distress?

This Article seeks to examine the relationship between European Union (“EU”) law, international law, and the protection of fundamental rights in light of recent case law of the European Court of Justice (“ECJ”) and the Court of First Instance (“CFI”) relating to economic sanctions against individuals. It first looks at the judgment in Kadi. After a short presentation of the factual and legal background, it explores the question of whether the EU has competence to adopt smart sanctions. It then examines whether the EU is bound by resolutions of the UNSC, whether the ECJ has jurisdiction to review Community measures implementing such resolutions, and looks at the applicable standard of judicial scrutiny. It analyzes the contrasting views of the CFI, the Advocate General, and the ECJ, taking account also of the case law of the European Court of Human Rights (“ECtHR” or “Strasbourg Court”). Further, the Article explores the consequences of annulling the contested regulation. It then turns to discussing CFI case law in relation to sanctions lists drawn up not by the UNSC but by the Community. The Article concludes by welcoming the judgment of the ECJ. While its reasoning on the issue of Community competence is questionable, once such competence is established, it is difficult to support the abrogation of Community standards for the protection of fundamental rights. Such standards should ensure procedural due process while recognizing the importance of public security

Queering Brexit: what’s in Brexit for sexual and gender minorities?

On 24 June 2016, many people had the feeling that they had gone to bed the night before in the United Kingdom and had woken up in Little Britain – a country prone to isolationism and protectionism, risking hurting its economic and social development for the sake of imperial nostalgia and moral panic about ‘loss of sovereignty’ and ‘mass migration’. That feeling inevitably affected many individuals who identify as lesbian, gay, bisexual, trans, intersex, queer and other (LGBTIQ+). Although the possible impact of Brexit seems to have been scrutinised from most angles, there has been limited analysis of how it may affect LGBTIQ+ individuals. This contribution assesses Brexit in relation to the situation of LGBTIQ+ individuals. This is particularly timely in the light of the recent UK Supreme Court decision in Walker v Innospec Limited, where the Court relied on European Union (EU) law to hold a provision of the Equality Act 2010 unlawful for violating pension rights of same-sex couples

The European Court of Justice and the Draft Constitution: A Supreme Court for the Union? Research Paper in Law 8/2003

[Introduction]. The purpose of this paper is twofold. First, it examines selectively the provisions of the draft Constitution pertaining to the Court of Justice and assesses the ways in which the draft Constitution is likely to affect the jurisdiction and the function of the Court. Secondly, it discusses the challenges faced by the Court in relation to the protection of human rights by reference to the recent judgment in Schmidberger.1 Both aspects of the discussion serve to underlie that the Court is assuming the function of the Supreme Court of the Union whose jurisdiction is fundamentally constitutional in character. It has a central role to play not only in relation to matters of economic integration but also in deciding issues of political governance, defining democracy at European and national level, and contributing through the process of judicial harmonisation to the emergence of a European demos. This constitutional jurisdiction of the ECJ is not new but has acquired more importance in recent years and is set to be enhanced under the provisions of the new Constitution. The paper is divided as follows: The first section provides an overview of the way the new Constitution affects the ECJ. The subsequent sections examine respectively Article 28(1) of the draft Constitution, the appointment and tenure of the judiciary, locus standi for private individuals, sanctions against Member States, jurisdiction under the CFSP and the Chapter on freedom, security and justice, preliminary references, other provisions o f the Constitution pertaining to the Court, the principle of subsidiarity, and the judgment in Schmidberger. The final section contains some concluding remarks