Abstract
Over more than six decades, this powerful supranational Court has expanded its jurisdictional authority well beyond its original, narrow boundaries. Foreign affairs have increasingly become the subject of action by the ECJ. The Treaty of Lisbon of 2009 became a pivotal point in European integration and its foreign relations. No study of the ECJ is ever complete without due attention being paid to the cases involving Kadi. They left an indelible mark on the approach of the ECJ towards foreign affairs and its relations with the UNSC. On the one hand, the landmark rulings empowered the EU to play a role in foreign affairs and security policy. On the other hand, it placed fundamental rights at the apex of the Union’s edifice and the central point of the EU’s approach to foreign affairs. Only Member States and EU institutions may participate in the opinion procedure and submit written statements to the Court. No other party may present amicus curiae briefs. When the EU’s uncompromising stand on the ECJ is analysed the bottom line that emerges is of material interest to the focus of this book: the Court has become an influential force not only in the EU establishment as a whole, but also in the Union’s foreign affairs in particular. Keeping this in mind, it has become essential for FPA to credit the judiciary for its role in foreign affairs and accept it as an influential actor in that context.
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Notes
- 1.
The Court has now existed under different names for over 60 years. This book uses ECJ as referring to this Court, unless direct quotations being used refer to its renamed title of the Court of Justice of the European Union (CJEU) in terms of the Lisbon Treaty of 2009.
- 2.
Wahl and Prete 2018, p. 514. On pp. 516–537 the authors give an in-depth analysis of the Court’s jurisdiction.
- 3.
The Commission is the main executive body of the EU. It has general executive and management functions. In most cases it has the sole right to propose EU legislation. In many areas, it negotiates international agreements on behalf of the EU and represents the EU in international organisations. And the Commission also oversees and enforces the application of Union law, in particular by initiating infraction proceedings where it considers that a member state has not complied with its EU obligations.
- 4.
- 5.
Section 8.4.2 infra deals with these four cases in detail.
- 6.
Wessel 2018, p. 23. His article contains valuable insights into a variety of general principles relating to foreign affairs.
- 7.
Cardwell 2012, p. 3.
- 8.
Larik 2016, p. 279.
- 9.
Martinsen October 2015b, pp. 1623–1624.
- 10.
Malir 2013, p. 223.
- 11.
Alter 2014, pp. 4–5.
- 12.
Tamm 2013, p. 10.
- 13.
Ferejohn 2002, p. 42.
- 14.
Case C-294/83 (ECR 1339)—Parti écologiste “Les Verts” v. European Parliament 1986, at para 23.
- 15.
Alter 2008, p. 224.
- 16.
Martinsen 2015a, p. 2.
The study of power and influence forms a core part of political science and explains in part why political scientists have taken a great interest in the ECJ. Ibid., p. 7.
- 17.
Paso 2012, p. 32.
- 18.
Alter 2009, p. 1.
- 19.
Stone Sweet 2010, p. 37
- 20.
Chapter 10 devotes attention to the place the ECJ occupies in Brexit.
- 21.
Wouters and Coppens 2005, p. 17.
- 22.
Saurugger and Terpan 2015, p. 18.
- 23.
Stone Sweet 2010, pp. 1–50.
- 24.
Slagter 2012, p. 2.
- 25.
For Barrett, it is most important that three aspects of judicial review are understood, which apply to both SCOTUS and the two highest Courts in SA, as well as the ECJ. First, that judicial review defines both rule of law and the political role of the respective Courts by making it the final determinant of the law and the upholder of the constitution in the case of both the USA and SA, and the fundamental treaties in the case of the EU. Secondly, by the action of judicial review the judiciary establishes itself as equal, not subordinate to, the other branches of government. Thirdly, judicial review does not only invalidate blatantly unconstitutional law it could be used by the judiciary to expand or contract its jurisdiction. Barrett 2007, p. 10. She also refers to the fact that “judicial review has been credited as an important feature of a strong and independent judiciary [and that the] World Bank sees judicial review as necessary for judicial independence”. Ibid.
- 26.
See Chap. 9, Sect. 9.2.1.
- 27.
See Chap. 10.
- 28.
Barrett 2006, p. 3.
- 29.
Babayev 2007, p. 34.
- 30.
Carrubba et al. 2008, p. 436.
- 31.
Butler 2016, p. 311.
- 32.
Blauberger 2012, p. 110.
- 33.
De Waele 2010, pp. 3–26.
- 34.
Kelemen 2016, p. 117.
- 35.
Saurugger and Terpan 2015, pp. 1 and 5.
- 36.
Kelemen 2016, pp. 118 and 140.
- 37.
Hirschl 2008a, p. 119.
- 38.
Ibid., p. 93.
- 39.
- 40.
Cremona and Thies 2014, p. 2. Emphasis added.
- 41.
Smith 2001, p 79.
- 42.
Kelemen and Schmidt 2012, p. 1.
- 43.
Cremona 2004, p. 571.
- 44.
Aggestam 2012, p. 463.
- 45.
Sari 2011, p. 61.
- 46.
Grimmel 2011, p. 21.
- 47.
Kelemen 2012, p. 43.
- 48.
- 49.
Wasserfallen 2010, p. 1128.
- 50.
Ibid., p. 1131.
- 51.
Everson 2010.
- 52.
Blauberger 2014, p. 457.
- 53.
De Waele 2010, p. 15.
- 54.
In Chap. 9, Sect. 9.2, several cases are discussed to illustrate their profound consequences within and outside the EU.
- 55.
Vikarska 2012, p. 39.
- 56.
Stone Sweet 2010, p. 1.
- 57.
Caldeira and Gibson 1995, pp. 356 and 358.
- 58.
Several Treaties followed after the Treaty of Rome in 1957 to modify, amplify, and formalise the ever-changing complexity of the EU and its expansion.
- 59.
Thym 2009, pp. 326–327.
- 60.
Van Elsuwege 2014, p. 135.
- 61.
The Treaty of Lisbon was signed on 13 December 2007 and entered into force on 1 December 2009. First, it amended the Treaty of Maastricht of 1993 to be known henceforth in this updated form as the Treaty on European Union of 2007 or TEU. Secondly, it amended the Treaty of Rome of 1957 to be known henceforth in its updated form as the Treaty on the Functioning of the European Union of 2007 or TFEU. The TEU specifically introduced the EU’s “external action” as the broad description of its policies towards the wider outside world and concretised the constitutional foundations of European foreign affairs. This is now known as the Common Foreign and Security Policy (CFSP) of the EU.
- 62.
- 63.
- 64.
Blockmans and Wessel 2009, p. 267.
- 65.
Henceforth the CJEU comprised three courts: the Court of Justice (formally the ECJ); the General Court (formally the Court of First Instance); and the Civil Service Tribunal. ECJ, 30 November 2009.
- 66.
- 67.
Cremona 2014, p. 17.
- 68.
Ibid., p. 16.
- 69.
Although “foreign policy” is an integral part of the TEU it does not define “foreign policy”.
- 70.
Ketvel 2006, p. 82.
- 71.
Eckes 2010, pp. 20 and 23–24.
- 72.
Butler 2016, p. 316.
- 73.
Cardwell 2015, p. 287.
- 74.
Ibid., p. 288.
- 75.
Ibid. Cardwell also provides this perspective:
Sanctions are both a foreign policy tool and a legal instrument, capable in some circumstances of being challenged in the courts and produced following an (albeit unique) legislative process. Sanctions often connect foreign policy actorness with the EU’s considerable economic weight and in many cases have become the ‘go to’ remedy at the European level.
- 76.
Ibid.
- 77.
Ibid.
- 78.
Eckes 2014, p. 869.
- 79.
Cardwell 2015, pp. 288 and 294. Cardwell deals extensively with the development of the sanctions regimes of the EU on pp. 294–304.
- 80.
Ibid., p. 299.
- 81.
Chachko 2018, p. 11.
- 82.
See also the discussion of the Rosneft case later on in Chap. 9, Sect. 9.2.5 and its importance to substantiate this argument.
- 83.
Wessel 2018, p. 24.
- 84.
Case C-22/70—Commission of the European Communities v. Council of the European Communities. 31 March 1971 at 274, para 17.
- 85.
Cardwell 2015, p. 291. Emphasis in original.
- 86.
Case C-130/10—European Parliament v. Council of the European Union. 19 July 2012.
- 87.
Cardwell 2015, p. 292.
- 88.
Case C-658/11—European Parliament v. Council of the European Union. 24 June 2014.
- 89.
Cardwell 2015, p. 303.
- 90.
Cardwell 2012, p. 8
- 91.
Cardwell 2015, p. 302. Emphasis added.
- 92.
Ibid., p. 309.
- 93.
Ibid., p. 293.
- 94.
Sari 2011, pp. 75 and 80.
- 95.
It is this role which the Brexiteers, including Prime Minister Theresa May, find so difficult to comprehend, namely that the ECJ is such an integral part of an indispensable cog in the functioning of the Union that the EU will not tolerate any effort to minimise, let alone eliminate, the role of the ECJ in any meaningful future relationship with the UK. See Chap. 10.
- 96.
Editorial 2018, p. 1679.
- 97.
Ibid., p. 1680.
- 98.
The ECJ’s recent decision in a case concerning the EU Partnership Agreement with Kazakhstan exemplifies this point. Case C-244/17—European Commission v Council of the European Union. 4 September 2018.
- 99.
Wessel 2018, p. 6.
- 100.
Editorial 2018, p. 1680.
- 101.
- 102.
Case C-658/11—European Parliament v Council of the European Union (Pirate Transfer Agreement with Mauritius), 24 June 2014, at paras 69–74; Case C-263/14—European Parliament v. Council (Pirate Transfer Agreement with Tanzania), 14 June 2016, at para 84; and Case C-439/13 P—Elitaliana v. Eulex Kosovo, 12 November 2105 at paras 41–49.
- 103.
Van Elsuwege 2017, p. 848. See also the decision in Case C-455/14 P, 19 July 2016, at paras 40–41.
- 104.
Wessel is quite clear on this point: the CFSP has always been part and parcel of the EU’s legal order and should be interpreted in that light. Wessel 2018, p. 1.
- 105.
Van Elsuwege 2017, p. 850.
- 106.
Case C 314/85—Foto-Frost v. Hauptzollamt Lübeck-Ost, 22 October 1987.
- 107.
Van Elsuwege 2017, p. 856.
- 108.
Ibid., p. 858.
- 109.
Ibid.
- 110.
Wessel 2018, p. 22. To substantiate his argument, in footnote 104 he supplies an extensive list of analyses detailing the role of the Court in the CFSP.
- 111.
See along these lines the point made by Advocate General Wathelet . Wathelet Opinion 31 May 2016. Case C 72/15— Rosneft Oil Company OJSC v. Her Majesty’s Treasury, The Secretary of State for Business, Innovation and Skills, The Financial Conduct Authority, 28 March 2017.
- 112.
Poli 2017, p. 1799.
- 113.
Sánchez-Tabernero 2017, p. 919.
- 114.
Case C 72/15, 28 March 2017. Rosneft is a legal entity active in the oil and gas sectors, controlled by a Russian state-owned company. This case is discussed in Chap. 9, Sect. 9.2.5.
- 115.
The sanctions placed on the Russian Federation were also extensive, but were not authorised by the UNSC.
- 116.
Cardwell 2015, p. 303.
- 117.
Poli, p. 1832.
- 118.
Ibid., p. 1800.
- 119.
However, the CFSP is now part and parcel of the EU legal order, even if it retains certain particular features. As a consequence, the usual mechanisms of enforcement and sanctioning which exist in the framework of public international law cannot be applicable to it.
Wahl 2016, at para 46.
- 120.
Case C-455/14 P, 19 July 2016.
- 121.
Sánchez-Tabernero 2017, pp. 919–920.
- 122.
Ibid., p. 920.
- 123.
Koutrakos 2001, p. 2.
- 124.
Ibid.
- 125.
Ibid., p. 3.
- 126.
Jacobs 1996, para 41.
- 127.
- 128.
Brady 2014, p. 65.
- 129.
- 130.
Snyder 2003, pp. 317–318.
- 131.
See Chap. 10.
- 132.
Alter 2012, p. 138.
- 133.
- 134.
Brady 2014, p. 65.
- 135.
Involved were the European Court of First Instance (CFI) in Kadi I; the European Court of Justice (ECJ) in Kadi II; and the General Court of the European Union (GC) in Kadi III. Each dealt with key issues for defining the interaction between international law and the law of the EU. On 18 July 2013, the Court of Justice of the European Union (CJEU —the ECJ under its new name) delivered a further judgment in respect of these proceedings in Kadi IV. All references to “Kadi” in this chapter invariably include Yassin Kadi and the Al Barakaat Foundation.
- 136.
Avbelj et al. 2014.
- 137.
Case C-29/69—Erich Stauder v. City of Ulm-Sozialamt, 12 November 1969 at 425.
- 138.
Yassin Abdullah Kadi was a Saudi national.
- 139.
Al Barakaat International Foundation was a Somali firm founded and located in Sweden.
- 140.
Leonard and Kaunert 2012, p. 488. Emphasis added.
- 141.
- 142.
Harpaz 2009, p. 88.
- 143.
Lavranos 2009b, p. 1226.
- 144.
Ibid., p. 1228.
- 145.
Poli and Tzanou 2009, p. 541.
- 146.
De Búrca 2009, pp. 855–856.
- 147.
Ibid., p. 862.
- 148.
The two cases were later joined in one and on which the various rulings were made and to which the reference of “Kadi” applied.
- 149.
The UNSC adopted a series of resolutions on stopping the flow of funds to terrorist groups. Some of these resolutions pre-date the events of 9/11. See UNSC resolutions 1269 of 19 October 1999; 1363 of 30 July 2001; and 1373 of 28 September 2001.
- 150.
Bantekas 2003, p. 320.
- 151.
It is not the intention to discuss the power of the UNSC to impose sanctions in terms of Article 41 of the UN Charter. That falls beyond the scope of this book. Yet vital aspects of this Article and its importance to impose sanctions must be understood, as well as the fact that the EU has never been a member of the UN. What became truly an untenable situation within the EU was the fact that none of the EU Member States had asserted that it considered targeted UNSC sanctions to be ultra vires the powers of the Council and thus void of binding force. EU Member States did contribute to the implementation of targeted sanctions. No EU Member State attempted to evade its international obligations in carrying out UNSC decisions on comprehensive or targeted sanctions.
- 152.
Cardwell et al. 2009, p. 229.
- 153.
EU Council Regulation (EC) 2002 imposed specific restrictive measures directed against certain individuals and entities associated with terrorist groups. This Regulation implemented the restrictive measures set by the UNSC resolution and was henceforth enforceable in the territory of the EU and thus applicable to Kadi and the Foundation. See Chap. 9, Sect. 9.2.13, for the application of these measures to add the Kurdistan Workers’ Party (P.K.K.) to the EU’s terror list.
- 154.
Targeted sanctions, i.e. blacklisting of individuals and private entities and the freezing of their financial assets without the possibility of judicial review , became increasingly controversial. Stenhammar 2010, p. 114.
Comprehensive sanctions had by now almost been fully replaced by targeted sanctions. Van den Herik and Schrijver 2008, p. 332.
In contrast to comprehensive economic sanctions, targeted sanctions are not imposed on States or entire populations, but on specifically identified individuals and other entities.
- 155.
The Swiss authorities began investigating Kadi’s activities in Switzerland in October 2001 upon his inclusion on the lists of the USA and of the UNSC. Six years later, after an investigation conducted in cooperation with law enforcement agencies from other countries, including the USA, the Swiss prosecution office terminated the investigation and dropped all charges against Kadi.
- 156.
Klabbers 2007, p. 294.
- 157.
De Búrca 2010, p. 18.
- 158.
Goldsmith and Posner 2008.
- 159.
Under Chapter VII of the UN Charter the UNSC is authorised to adopt such resolutions in order to “maintain or restore international peace and security”, while members of the UN are obligated to “accept and carry out” such decisions according to Article 25 of that Charter.
- 160.
Case T-306/01—Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, on 21 September 2005 (Kadi I).
- 161.
Opinion of Advocate General Poiares Maduro 2008 as reproduced in Kadi II 2008, at paras 54–55.
- 162.
Joined Cases C-402/05 P and C-415/05 P 2008, 3 September 2008, at paras 281–283 (Kadi II).
- 163.
Gattini 2009, at 224–225.
- 164.
Joined Cases C-402/05 P and C-415/05 P 2008 (Kadi II), at para 282.
- 165.
Strydom 2017, p. 424.
- 166.
Harpaz 2009, p. 65.
- 167.
Stenhammar 2010, p. 136.
- 168.
Case T-85/09—Yassin Abdullah Kadi v. European Commission, 30 September 2010, at para 171 (Kadi III).
- 169.
Ibid., at paras 172–174.
- 170.
Ibid., at para 195.
- 171.
Case C-584/10 P, C-593/10 P and C-595/10 P—European Commission; Council of the European Union; United Kingdom of Great Britain and Northern Ireland v. Yassin Abdullah Kadi, 18 July 2013, at para 19 (Kadi IV).
- 172.
Shekhtman 2013, p. 102.
- 173.
See Chap. 9, Sect. 9.2.1.
- 174.
Shekhtman 2013, pp. 89–90.
- 175.
Poli and Tzanou 2009, p. 557.
- 176.
- 177.
Kokott and Sobotta 2012, p. 1015.
- 178.
Cuyvers 2011, p. 485.
- 179.
Poli and Tzanou 2009, p. 542.
- 180.
Ibid., p. 555.
- 181.
Fabbrini 2010, p. 694.
- 182.
Harpaz 2009, pp. 87 and 88.
- 183.
Cardwell et al. 2009, p. 233.
- 184.
Cannizzaro 2009, p. 593.
- 185.
Petersen 2011, pp. 19–20.
- 186.
Joined Cases 2008, at para 316 (Kadi II). The importance of this declaration became clear when the EU resisted attempts by the UK to rule out a role for the ECJ in protecting the rights of EU citizens living and working in the UK after Brexit (29 March 2019). See Chap. 10, Sect. 10.4.7.
- 187.
Joined Cases 2008, at para 285 (Kadi II).
- 188.
Cardwell et al. 2009, p. 238.
- 189.
Ketvel 2006, p. 109.
- 190.
Van den Herik and Schrijver 2008, p. 332.
- 191.
Ibid., p. 335.
- 192.
Kokott and Sobotta 2012, p. 1024.
- 193.
Strydom 2017, p. 404.
- 194.
Ibid.
- 195.
Joined Cases 2008, at para 326 (Kadi II).
- 196.
Ibid., at para 308.
- 197.
Huber and Rodiles 2012, p. 121.
- 198.
Ibid., p. 126.
- 199.
Ibid., p. 129.
- 200.
Ibid., p. 132.
- 201.
These two authors were eminently qualified to assess professionally the whole process leading up to the adoption of UNSC resolution 1904. Huber was a member of the Permanent Mission of Austria to the UN. She specialised in counter-terrorism and sanctions issues, assisting the Chairman of the UNSC Committee concerning al-Qaeda and the Taliban during the period 2009–2010. Previously she served on the Austrian delegation to the EU. Rodiles was Legal Adviser to the Permanent Mission of Mexico to the UN when Mexico served on the UNSC at the time of the adoption of UNSC 1904.
- 202.
Huber and Rodiles 2012, p. 135.
- 203.
Ibid., p. 140.
- 204.
Ibid., p. 141.
- 205.
Tridimas 2009, p. 103.
- 206.
Larik 2010, p. 149.
- 207.
Tridimas 2009, p. 125.
- 208.
Tridimas and Guitierrez-Fons 2009, p. 727.
- 209.
Poli and Tzanou 2009, p. 554.
- 210.
Lavranos 2009a, p. 183.
- 211.
De Búrca 2010, pp. 24 and 49.
- 212.
Stenhammar 2010, p. 136.
- 213.
- 214.
Vlcek 2006, p. 507.
- 215.
De Búrca 2010, p. 8.
- 216.
Ibid., p. 11.
- 217.
Wessel 2006, p. 6.
- 218.
Shirlow 2014, p. 18.
- 219.
It is for this very reason that the EU is adamant on insisting that the ECJ plays the oversight role to ensure the protection of the rights of EU citizens in the UK after Brexit. See Chap. 10, Sect. 10.4.7.
- 220.
Brkan 2012, p. 106.
- 221.
The Baltic Times, 4 May 2017.
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Eksteen, R. (2019). European Court of Justice (Segment A). In: The Role of the Highest Courts of the United States of America and South Africa, and the European Court of Justice in Foreign Affairs. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-295-8_8
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