European briefing

On 3 September 2008 the Grand Chamber of the ECJ handed down an important constitutional judgment in Joined Cases C-402/05 P and C-415/05 P Kadi v Council. The judgment is extremely long (380 paragraphs) and contains a great deal of interest. Most importantly, it contains a strong reassertion of the importance of judicial protection of fundamental rights in Community law.

The cases arose out of restrictive measures taken at the Community level in order to implement UN Security Council measures against the Afghan Taliban and supporters of Al-Qaeda. These measures were challenged before the CFI, which rejected the challenge, and the applicants appealed to the ECJ, which has allowed the appeal. (The Community institutions and various member states also brought cross-appeals designed to attack some aspects of the CFI's reasoning.)

The judgment contains a long and highly technical discussion of whether (and under what provisions) the EC had power to adopt the contested measures; but the upshot was that the ECJ, predictably enough, agreed that there was power. However, as the ECJ saw it, the measures started to look problematic when it came to the protection of individual rights.

The applicants complained that the CFI had treated itself as bound (subject to a very narrow exception) to accept that the UN's decisions were valid and binding as a matter of law. They complained that this emasculated the proper judicial control of Community implementing measures, and prejudiced individual rights because the UN procedures had none of the usual safeguards for individuals. Conversely, some member states argued that the CFI had not gone far enough, and ought to have utterly rejected any possibility of questioning the validity of a UN measure.

The ECJ started from a strong assertion of first principles: the Community is based on the rule of law; that includes a principle of judicial review of all Community acts by the Community courts; it also includes the fundamental principle of human rights, with respect for human rights as a precondition for the lawfulness of any Community act.

It follows from those principles that it is impossible for the Community to 'hide behind' the binding force of a UN resolution in order to avoid full review by the Community's own courts of the compatibility of any normative Community decision with human rights. If the Community took steps to implement UN resolutions, a fully searching judicial review would consider whether there had been proper compliance with human rights law.

The ECJ therefore rejected the suggestion that its hands could be in any way tied by the fact that the measure in question originated in a UN resolution. Respect for fundamental rights, and proper judicial protection of those rights, were too important. Whatever the UN Charter might provide, it could not take primacy over basic and fundamental Community law.

That was enough to decide the appeal: the CFI had approached the case on a false basis, believing the outcome of the case to be substantially dictated by the UN resolution, and beyond the power of the CFI to intervene. In this it had been wrong. However, rather than remitting the case to the CFI, the ECJ went on to consider whether fundamental rights had been adequately respected in the whole process leading to the decision.

It had no difficulty in concluding that they had not been: the affected persons had been given no proper advance warning, no proper opportunity to contest the case against them, no proper access to the evidence relied on, and no adequate explanation of the reason for the measures in their particular cases. Consequently the regulation was annulled (though the Community was given a short time to consider adopting a different measure with proper respect for fundamental rights).

West Tankers: the advocate general's opinion

Previous European Briefings have commented on the question whether it remains possible for English courts to grant anti-suit injunctions to restrain

proceedings brought in another member state in breach of an arbitration agreement. That question was referred by the House of Lords (who thought the answer should be that such injunctions can be granted) to the ECJ in Case C-185/07 West Tankers Inc.

The oral hearing before the ECJ took place and the advocate general's opinion was delivered on 4 September 2008. As rather widely expected, the advocate general suggests the answer should be that anti-suit injunctions are not permissible to restrain proceedings in courts of member states, even if the reason for them is to protect arbitration agreements. It remains to be seen, of course, whether the ECJ will agree. But it seems likely that it will do so.

Speedy preliminary references

There have often been complaints in the past about the speed of preliminary references to the ECJ. To help with this problem, in March 2008 the ECJ introduced a new system for expediting preliminary references in urgent cases.

The system has now been used twice '“ once in a case involving the need to take urgent decisions about child custody (Case C-195/08 PPU Rinau, 11 July 2008), and once in a case involving the need to take urgent decisions about a European arrest warrant (Case C-296/08 PPU Santesteban Goicoechea, 12 August 2008). At least in terms of speed, the system seems to be working. Rinau was decided in less than two months, and Santesteban Goicoechea in just over a month, even though the cases raised difficult issues and required the court to consider submissions by many governments.