Inward- and Outward-Looking Rationales behind Kadi II
| DOI | 10.1177/1023263X1402100406 |
| Author | Michael Wimmer |
| Published date | 01 December 2014 |
| Date | 01 December 2014 |
| Subject Matter | Article |
676 21 MJ 4 (2014)
INWARD- AND OUTWARD-LOOKING
RATIONALES BEHIND KADI II
M W*
ABSTRACT
e Kadi-‘saga’ has been a prime opportunity for the Court of Justice of the European
Union (CJEU) to rea rm both the constitutional foundations of the European Union
and the relationship towards the United Nations legal order in the area of EU restrictive
measures. ere i s a continuity between the rationale of the CJEU’s rst and second Kadi-
judgments. e latter reveals a subtle interaction between internal and external driving
forces. e major innovation is the formulation of a common law of EU sanctions. is
framework balances EU constitutional st andards with the preservation of the e ectiveness
of restrictive measures as a polic y tool. Still, some fundamental rights gaps remain. From
an external perspective, the judgment re ects some de gree of openness, but does not provide
a proper interface between inter national law and EU law, due to the asymmetric relations
between the EU and the UN legal orders.
Keywords: EU restric tive measures; fundamental r ights; judicial review; Kadi II; United
Nations sanctions
§1. IN TRODUC T ION
In the history of the C ourts of the European Union, few cases have sparked more debates
at every stage of the procedure than the series of judgments concerning Mr. Kadi, a
case in which the i mplementation of United Nations (UN) terrorism sanctions by the
European Union (EU) was challenged i n court.
* Belgian diplom at and doctoral re searcher at the Facu lty of Law, KU Leuven. All views ex pressed in
this art icle are personal to the aut hor and do not bind the instit utions to which he belongs. e author
would like to t hank two anony mous reviewers, as well as El ise Muir for their u seful comments. All
shortcomings rema in the author’s responsibil ity.
Inward- and Outw ard-Looking Rati onales Behind Kadi II
21 MJ 4 (2014) 677
e litigation in Kadi1 was spread over a period ranging from 2001 to 2013, a time span
that has seen a steady increas e in the enactment by the Union of restrictive measu res (also
called sanctions),2 both as way of implementing Resolutions of the UN S ecurity Council
(UNSC) and on an autonomous basis.3 EU restrictive measures have been used aga inst
governments of third countries, non-state entities and indiv iduals with va rious aims:
terrorism prevention, the ght against nuclea r proliferation, the promotion of human
rights and the ru le of law, and the safegu arding of international peace and secur ity. Far-
reaching measures may be comprised, such as asset freezes, visa or travel bans, speci c
or general trade restrict ions and arms embargoes. In a series of judgments, culm inating
with the recent decision in Kadi II, the Court of Justice (CJEU) has acknowledged that
those measures can p otentially have an adverse e ect on t he rights of individuals.
e reason for the academic interest in the Kadi ‘saga’ is that the proceedings have
been a prime opportunit y for the CJEU to rea rm both the constitutional foundations
of the Union and the relationship towards the U N legal order in the area of EU restrictive
measures. In the current article, it will be argued that the same inward- and outward-
looking rationales as in Kadi I are still very much present in the CJEU’s second Kadi
judgment. Yet, the latter brings additional d imensions to the debate within and outside
the EU legal order. e major innovation is the formulat ion of a common law of EU
restrictive measu res, which applies to all ty pes of sanctions. Nonetheless, a mere i nternal
reading of this case is insu cient. Instead of considering the Court’s reasoning as
internal constitutiona l navel-gazing, the current article suggests that the CJEU in fact
tries to initiate some k ind of bottom-up dialogue on fundamenta l rights protection. Yet,
this attempt fail s to close the systemic gap between the two legal orders.
A er a brief recollec tion of the history of the Kadi litigation (section 1), which might
easily be skipped by readers who a re familiar with t he case, the article expos es in section
2 the inward-looking rationa le for this cas e. It is held that from an interna l perspective,
the Court intends to go f urther than merely asce rtaining the content of procedura l rights
granted to suspected terror ists under UN sanctions, which are t ransposed within t he EU
legal order. In fact, the second Kadi judgment of the CJEU must be read as an attempt
to develop a ‘common law of EU restrictive measures’, which is su ciently protective
of fundamental rights and the rule of law and adapted to the reality of EU sanctions
law as a whole. ose principles should apply beyond the speci c case of Kadi to all EU
sanctions, regardle ss of their origin, objective and target . e novelty lies above al l in the
1 Amounting to no les s than four judgments.
2 In the present ar ticle, both terms w ill be used as sy nonyms.
3 When the identi cation process ta kes place within t he EU (without relying on a pre-exi sting UN list)
either solely at EU level or in a t wo-tier procedure involv ing the Union and its Member St ates. is can
be the case even i f the general politica l or legal framework is outli ned in a UNSC Resolution or if the
Union supplements UNSC regi mes with sanctions th at go beyond the letter of the UNSC Res olutions
(‘gold-plating’). See C. Por tela, ‘ e EU’s use of “targeted s anctions”- evaluating e ectiveness’, CEPS
Work ing D ocum ent no. 391 (2014), www.ceps.be /ceps/dld/9016/pdf.
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