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Controlling the Most Dangerous Branch*from Afar: Multilayered Counter-Terrorist Policies and the European Judiciary

Published online by Cambridge University Press:  20 January 2017

Christina Eckes*
Affiliation:
Amsterdam Centre for European Law and Governance (ACELG), University of Amsterdam.

Extract

Counter-terrorist sanctions against private individuals adopted by the EU and by the UN are an exceptionally illustrative example of the executive’s power grasp, where the dangers of counter-terrorist policies and of externalized rulemaking have mutually reinforced each other. This article (re-)considers the role of the judiciary in the face of extreme exercise of externalized executive powers, demonstrates that multilayered governance has extended the powers of courts, shows that the justified exercise of judicial power has led the EU institutions and the Member States into a self-inflicted catch-22, and makes an argument that the extended powers of the executive and of the judiciary should be contained and guided by a principled choice of the constituent power. Constitutional law should require the judiciary to take a substantive approach to multilayered governance that reflects the principle of separation of powers.

Type
Research Article
Copyright
Copyright © Cambridge University Press 2011

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Footnotes

*

Judy Coleman, “The Most Dangerous Branch? Mayors, Governors, Presidents and the Rule of Law. A Symposium on Executive Power: Introduction”, 115 (2215) Yale Law Journal (2006), available on the Internet at <http://www.yalelawjournal.org/pdf/115-9/Intro.pdf> (last accessed on 26 October 2011). Alexander Hamilton wrote in The Federalist Papers that the judiciary was “the least dangerous” branch [The Federalist Papers No 47, at pp. 302–03].

References

1 Instructive on this issue, Donohue, Laura K., The Cost of Counter- Terrorism (Cambridge University Press, 2008).Google Scholar

2 “Multilayered” policy-making or decision-making refers to processes that take place at the national, European, and international level. “Multilayered” is used instead of multilateral because often the same players are involved at different layers and the different layers do not stand in a clearly hierarchical relationship with each other.

3 See on the “externalization” of national executive power Curtin, Deirdre, Executive Power in the European Union. Law, Practices and Constitutionalism (Oxford: Oxford University Press, 2009)CrossRefGoogle Scholar, Chapter 2.

4 See for a comprehensive discussion of both sanctions regimes Eckes, Christina, EU Counter-Terrorist Policies and Fundamental Rights: The Case of Individual Sanctions (Oxford: Oxford University Press, 2009).CrossRefGoogle Scholar

5 S/RES/1373 (2001), of 28 September 2001; requiring the UN Member States to identify terrorist suspects and to freeze their financial resources.

6 Prominent examples of those that have been on autonomous lists are the Kurdistan Workers’ Party (PKK), the People Mujahedin of Iran, and Basque organisations.

7 S/RES/1267 (1999), of 15 October 1999.

8 See, e.g., S/RES/1333 (2000), of 19 December 2000; S/RES/1390 (2002), of 16 January 2002.

9 S/RES/1455 (2003), of 17 January 2003; S/RES/1526 (2004), of 30 January 2004; S/RES/1617 (2005), of 29 July 2005.

10 S/RES/1730 (2006), of 19 December 2006.

11 S/RES/1735 (2006), of 22 December 2006.

12 S/RES/1822 (2008), of 30 June 2008.

13 S/RES/1904 (2009), of 17 December 2009.

14 The current Ombudsperson is Ms. Kimberly Prost who is a former ad litem judge of the International Criminal Tribunal for the former Yugoslavia.

15 Resolution 1904, para. 20: “[…] to appoint an eminent individual of high moral character, impartiality and integrity with high qualifications and experience in relevant fields, such as legal, human rights, counter-terrorism and sanctions, to be Ombudsperson […].”

16 ECtHR, Conka v. Belgium (Appl No. 51564/99), judgment of 5 Feb 2002, para. 75 [emphasis added]: “…The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. …”

17 The first instruments were Common Position 1999/727/CFSP 15 November 1999; EC Regulation 337/2000 of 14 February 2000. See also current Articles 75 and 215 TFEU.

18 Before the Lisbon Treaty, the Union implemented UN lists based on ex-Articles 301, 60, and 308 EC but its competence was highly controversial, see Eckes, Christina, “Judicial Review of European Anti-Terrorism Measures: The Yusuf and Kadi Judgments of the Court of First Instance”, European Law Journal (2008), pp. 7492.Google Scholar

19 EU Regulation 1286/2009, O.J. 2009 L 346/42, of 22 December 2009, amending Regulation 881/2002.

20 Court of Justice, Case C-402/05 P and C-415/05 P, Kadi I, [2008] ECR I-6351.

21 Report of the European Center for Constitutional and Human Rights (ECCHR), “Blacklisted: Targeted Sanctions, preemptive security and fundamental rights”, December 2009, p. 19, available on the Internet at <http://www.ecchr.eu/news_details/items/neuer-ecchrbericht--- blacklisted-targeted-sanctions-preemptive-security-andfundamental- rights.html> (last accessed on …).

22 EU Regulation 1286/2009, supra note 19, in particular Recital 6, Article 1(1)(b), Article 1(9). See below section III. “Catch-22-Position” for a critical analysis.

23 Check the UN website for an impression of the lack of detail of these statements <http://www.un.org/sc/committees/1267/narrative.shtml>.

24 See also below section III.2., “The European institutions in a catch-22-position”.

25 Agreeing with this conclusion ECCHR Report, supra note 21, p. 19.

26 Case T-315/01, Kadi v. Council and Commission (Kadi I) [2005] ECR II-3649; ECJ, Kadi I, supra note 20; Case T-85/09, Kadi v. Commission (Kadi II), judgment of 30 September 2010.

27 Commission Regulation 2062/2001/EC.

28 The former Court of First Instance (CFI) was renamed into General Court by the Treaty of Lisbon. This article will throughout refer to the lower EU Court as General Court. See for a full account of the General Court's ruling Christina Eckes, “Judicial Review of European Anti-Terrorism Measures”, supra note 18; Bulterman, Mielle, “Fundamental Rights and the United Nations Financial Sanction Regime: The Kadi and Yusuf Judgments of the Court of First Instance of the European Communities”, 19 Leiden Journal of International Law (2006), pp. 753–72CrossRefGoogle Scholar; Tomuschad, Christian, “Case law: Case T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission, Judgment of the Court of First Instance of 21 September 2005; Case T-315/01, Yassin Abdullah Kadi v. Council and Commission, judgment of the Court of First Instance of 21 September 2005, nyr”, 43 CML Rev (2006), p. 537.Google Scholar

29 See for a full account of the CoJ's ruling Eckes, Christina, “International Sanctions against Individuals: A Test Case for the Resilience of the European Union's Constitutional Foundations”, European Public Law (2009), pp. 351–78Google Scholar; Gattini, Andrea, “Joined Cases C-402/05 P & 415/05 P, Yassin Abdullah Kadi, Al Barakaat International Foundation v. Council and Commission, judgment of the Grand Chamber of 3 September 2008, nyr”, 46 Common Market Law Review (2009), pp. 213–39Google Scholar; Tridimas, Takis and Gutierrez-Fons, Jose A, “EU Law, International Law and Economic Sanctions Against Terrorism: The Judiciary in Distress?”, Fordham International Law Journal (2009).Google Scholar

30 Isiksel, Türküler, “Fundamental Rights in the EU after Kadi and Al Barakaat”, 16(5) European Law Journal (2010), pp. 551577.CrossRefGoogle Scholar

31 Articles 6 and 13 ECHR; Articles 2(3) and 14 of the International Covenant of Civil and Political Rights.

32 In this case the UN Charter. See Article 351 TFEU.

33 Court of Justice, Kadi I, paras. 303–4 with a reference to ex-Article 6 TEU.

34 Rosas, Alan, “Separation of Powers in the European Union”, 41 The International Lawyer (2007), pp. 10331046, at p. 1036.Google Scholar

35 Court of Justice, Kadi I, supra note 20, para. 351.

36 Entry 22 in Commission Regulation 36/2011, of 18 January 2011, O.J. 2011 L 14/11.

37 General Court, Kadi II, supra note 26, paras. 114 and 116 [adapted to post-Lisbon terminology].

38 Court of Justice, Kadi I, paras. 286 et sqq.

39 General Court, Kadi II, supra note 26, para. 119 (emphasis added).

40 Ibid., para. 112.

41 See supra notes 28 and 29.

42 General Court, Kadi II, supra note 26, para. 115.

43 Ibid., para. 121.

44 Gráinne de Búrca, “The European Court of Justice and the International Legal Order after Kadi”, Jean Monnet Working Paper No. 01/09; Klabbers, Jan, Treaty Conflict and the European Union (CUP, Cambridge 2009)Google Scholar; Halberstam, Daniel and Stein, Eric, “The United Nations, the European Union, and the King of Sweden: Economic sanctions and individual rights in a pluralworld order”, 46 Common Market Law Review (2009), pp. 1372.Google Scholar

45 Christina Eckes, “International Sanctions against Individuals”, supra note 29; Andrea Gattini, “Joined Cases C-402/05 P & 415/05 P”, supra note 29; Takis Tridimas and Jose A. Gutierrez-Fons, “EU Law, International Law and Economic Sanctions”, supra note 29.

46 Judge Forwood.

47 General Court, Kadi II, supra note 26, paras. 123 et sqq., at para. 139. The applicable standard of review in particular was challenged by the Commission appeal brought on 13 December 2010 by the European Commission against the judgment of the General Court (Seventh Chamber) delivered on 30 September 2010 in Case T-85/09 Kadi v. Commission: Court of Justice, Case C-584/10 P, Commission v. Kadi.

48 Ibid., para. 141.

49 Ibid., para. 142.

50 Ibid., para. 147.

51 Ibid., para. 145.

52 General Court, Kadi II, supra note 26, paras. 122–123.

53 Court of Justice, Case C-584/10 P, Commission v. Kadi. See also the Council's appeal against the same judgment, Court of Justice, Case C-593/10 P, Council v. Kadi and the UK's appeal against the same judgment, Court of Justice, Case C-595/10 P, UK v. Kadi.

54 In C-267/91 and C-268/91, Keck and Mithouard [1993] ECR I-6097, the ECJ famously limited its broad approach to measures having equivalent effect. It explicitly noted: “… the Court considers it necessary to re-examine and clarify its case-law on this matter.” (para. 13) and “By contrast, contrary to what has previously been decided …” (para. 16).

55 CFI, Case T-318/01, Omar Mohammed Othman and CFI, Cases T-135/06 to T-138/06, Al-Bashir Mohammed Al-Faqih, Sanabel Relief Agency Ltd, Ghunia Abdrabbah, Taher Nasuf. Other cases on sanctions giving effect to UN lists (decided between CFI, Kadi I and Court of Justice, Kadi I), CFI, T-49/04, Hassan v. Council and Commission; CFI, Case T-253/02, Chafiq Ayadi v. Council.

56 Case C-355/04 P, Segi v. Council [2007] ECR I-1657. The only other pre-Kadi case (2007) is the case of PKK, which is of no further relevance for the present discussion [Case C-229/05 P, PKK and KNK v. Council [2007] ECR I-439].

57 See the procedure in ex-Article 301 EC. See also above section II.

58 Case T-338/02, Segi and others [2004] ECR II-1647.

59 Ibid., para. 56.

60 Para. 53.

61 Compare the old Article 35(1) TEU, not enable national courts to refer a question to the Court for a preliminary ruling on a common position.

62 Christina Eckes, EU Counter-Terrorist Policies and Fundamental Rights, supra note 4, Chapter 6.

63 For more detail see section IV. below.

64 Court of Justice, Case C-550/09, E and F (DHKP-C case) [2010] ECR I-0000; Court of Justice, Case C-340/08, M (FC) and Others v. Her Majesty's Treasury [2010] ECR I-0000.

65 Swiss Supreme Court, Youssef Mustapha Nada v. Staatssekretariat für Wirtschaft [2007] 1A.45/2007.

66 Federal Court of Canada, Abousfian Abdelrazik v. The Minister of Foreign Affairs and the Attorney General of Canada [2009] FC 580.

67 Ibid., paras. 51–53.

68 UK Supreme Court, Her Majesty's Treasury (Respondent) v. Mohammed Jabar Ahmed and others (FC) (Appellants); Her Majesty’s Treasury (Respondent) v. Mohammed al-Ghabra (FC) (Appellant); R (on the application of Hani El Sayed Sabaei Youssef) (Respondent) v. Her Majesty's Treasury (Appellant), judgment of 27 January 2010, [2010] UKSC 2.

69 Admittedly this is an understanding of fundamental rights that is quite unique to the UK. See A.V. Dicey, Introduction to the Study of the Law of the Constitution 3 (Macmillan, 1915), stating Parliament has “the right to make or unmake any law whatever; and … no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.” This has not changed with the adoption of the Human Rights Act 1998 – see UK Supreme Court, Ahmed, supra note 68, para. 111, per Lord Phillips; 193 per Lord Brown; and 240 per Lord Mance.

70 Article 10(3) of Protocol 36 on Transitional Provisions.

71 House of Lords, R (Al-Jedda) v. Secretary of State for Defence (Justice and another intervening) [2007] UKHL 58; [2008] 1 AC 332.

72 Hence, the change of the ECtHR's focus from “jurisdiction” to “attribution” (see above text accompanying n. 44–51) also changed the rights of individuals under the UK HRA. Compare Al-Skeini, ibid., paras. 10 and 134.

73 House of Lords, R (Quark Fishing Ltd) v. Secretary of State for Foreign and Commonwealth Affairs [2006] 1 AC 529, paras. 33–34. The HRA was intended to “bring rights home” by providing “a remedial structure in domestic law for the rights guaranteed by the Convention.” This led the HL to conclude that the territorial scope of the HRA was “intended to be coextensive with the territorial scope of the obligations of the UK and the rights of victims under the Convention”. See also Article 21(1) HRA 1998 defining the European Convention “as it has effect for the time being in relation to the United Kingdom.” See also House of Lords, R(Al-Skeini and others) v. Secretary of State for Defence (The Redress Trust intervening) [2007] UKHL 26, [2007] 3 WLR 33. This case also concerned acts of the UK armed forces in Iraq. Here, the House of Lords ruled that the HRA will usually apply to acts of UK public authorities where the victim is within UK jurisdiction as defined in Art. 1 ECHR. See in particular paras. 56–59 (per Lord Rodger), para. 88 (per Baroness Hale), paras. 138–140 (per Lord Brown). Lord Carswell agreed with Lord Rodger, at para. 96

74 House of Lords, Al-Jedda, supra note 71, para. 3; see below a critique of the lack of precision with which the Lords, excluding Baroness Hale, used the terms “displacing” and “qualifying”.

75 ECtHR, Behrami v. France; Saramati v. France, Germany and Norway, (2007) 45 EHRR 10; Marko Milanovic and Tatjana Papic, “As Bad As It Gets: The European Court of Human Rights’ Behrami and Saramati Decision and General International Law”, 57 International and Comparative Law Quarterly (2008).

76 UN interim administration for Kosovo.

77 ECtHR, Behrami and Saramati, supra note 75, para. 151.

78 Ibid.

79 Ibid., para. 141; see also District Court in The Hague of 10 September 2008 (Case number/cause-list number: 265615 / HA ZA 06-1671), ruling that the ECHR is not applicable to the killings in Srebrenica in July 1995 because the UN is not a contracting party and the citizens of Srebrenica did not come under the jurisdiction of the Netherlands.

80 ECtHR, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland (2005) 42 EHRR 1; see also ECtHR, Matthews v. UK, application no. 24833/94, judgment of 18 February 1999 and ECommHR, M. & Co. v. Germany, Application no. 13258/87, Commission decision of 9 February 1990, Decisions and Reports (DR) 64. See for more details C. Eckes, “Does the European Court of Human Rights provide protection from the European Community? – The Case of Bosphorus Airways”, 13 European Public Law (2007), pp. 47 et sqq.

81 V.F. Kauff-Gazin, “L’arrêt Bosphorus de la CEDH: quand le juge de Strasbourg décerne au système communautaire un label de protection satisfaisante des droits fondamentaux”, Les Petites Affiches no. 234, 2005, p. 13.

82 ECJ, C-84/95, Bosphorus Hava Yollari Turizm ve Ticaret AS v. Minister for Transport, Energy and Communications and others, 30 July 1996.

83 The hearing was on 9 June 2010.

84 Pending before the ECtHR Nada v. Switzerland, application no. 10593/08; available on the Internet at <http://cmiskp.echr.coe.int/tkp197/view.asp?action=open&documentId=875909&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649> (last accessed on 26 October 2011).

85 See section II. above.

86 171. This was an evaluation of the rules under Commission Regulation 1190/2008.

87 173.

88 See in particular Case T-228/02, Organisation des Modjahedines du peuple d’Iran v. Council and UK (OMPI I) [2006] ECR II-4665; Case T-256/07, People's Mojahedin Organization of Iran v. Council (OMPI II) [2008] ECR II-3019; Case T-284/08, People's Mojahedin Organization of Iran v. Council (OMPI III) [2008] ECR II-3487.

89 Article 1(4) of Common Position 931/2001/CFSP.

90 See for more detail Christina Eckes and Joana Mendes, “The Right to be Heard in Composite Administrative Procedures: Lost in between Protection?”, 36 European Law Review (2011), pp. 651-670.

91 Case T-228/02, OMPI I, supra note 9, paras. 162, 165, and 166.

92 Case T-284/08, OMPI III, supra note 11, para. 73.

93 General Court, Kadi I, para. 123.

94 Court of Justice, Kadi I, supra note 19, para. 351; General Court, Kadi II, supra note 26, para. 183.

95 Only the UK and France are permanently represented at the UN level.

96 See for an overview Damian Chalmers, Gareth Davies, Giorgio Monti, European Union Law: Cases and Materials (Cambridge University Press, 2010), pp. 206 et sqq.

97 See for a conceptual approach Robert Schütze, “Supremacy Without Pre-emption? The Very Slowly Emergent Doctrine of Pre-emption”, 43 CMLRev (2006), pp. 1023.

98 For an argument why individual sanctions are neither part of competition policy nor part of the common commercial policy see Christina Eckes, EU Counter-Terrorist Policies and Fundamental Rights, supra note 4, Chapter 2.

99 Case 39/72, Commission v. Italy [1973] ECR 101; Case 50/76 Amsterdam Bulb BV [1977] ECR-137.

100 Common Position 2001/930/CFSP of 27 December 2001 on combating terrorism, of 28 December 2001, OJ L 344/90.

101 See section II. above.

102 See also Declarations 13 and 14: 13. Declaration concerning the common foreign and security policy The Conference underlines that the provisions in the Treaty on European Union covering the Common Foreign and Security Policy, including the creation of the office of High Representative of the Union for Foreign Affairs and Security Policy and the establishment of an External Action Service, do not affect the responsibilities of the Member States, as they currently exist, for the formulation and conduct of their foreign policy nor of their national representation in third countries and international organisations. […] It stresses that the European Union and its Member States will remain bound by the provisions of the Charter of the United Nations and, in particular, by the primary responsibility of the Security Council and of its Members for the maintenance of international peace and security. 14. Declaration concerning the common foreign an security policy In addition to the specific rules and procedures referred to in paragraph 1 of Article 11 of the Treaty on European Union [referring to ex-Article 11, now Article 24 TEU], the Conference underlines that the provisions covering the Common Foreign and Security Policy including in relation to the High Representative of the Union for Foreign Affairs and Security Policy and the External Action Service will not affect the existing legal basis, responsibilities, and powers of each Member State in relation to the formulation and conduct of its foreign policy, its national diplomatic service, relations with third countries and participation in international organisations, including a Member State's membership of the Security Council of the United Nations. […] [emphasis added].

103 At the time Article 234 EEC, then Article 307 EC.

104 Court of Justice, Centro-Com, [1997] ECR I-81, paras. 58–59. The Court left the determination of whether the measures at hand were necessary to the national courts.

105 See section III. above.

106 Right to judicial protection, e.g. Article 19(4) of the German Basic Law.

107 See in particular Article 6 and 13 ECHR.

108 See in particular Article 14 ICCPR.

109 See section III.3.a. above.

110 UK Supreme Court, Ahmed, supra note 68, para. 22.

111 Application in Case C-130/10, Parliament v. Council, joined by the Commission, the Czech Republic, Sweden, and France as interveners (order of 10 August 2010).

112 Regulation 1286/2009, supra note 19.

113 Application, OJ C 134/26.

114 See on the choice of the post-Lisbon legal basis for individual sanctions Christina Eckes, “Counter-Terrorist Sanctions against Individuals: Remaining the Black Sheep?”, paper presented at the Uppsala University European Law Colloquium entitled “The Coherence and Effectiveness of EU External Relations after Lisbon”, on 31 March–1 April 2011.

115 E.g., Council Regulation amending EC Council Regulation 765/2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus, COM(2011) 26 final, of 24.1.2011, adopted on the basis of Council Decision 2010/639/ CFSP of 25 October 2010.

116 Last updated before the entering into force of the Lisbon Treaty: Council Common Position 2009/468/CFSP of 15 June 2009 updating Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Common Position 2009/67/CFSP, OJ L 151/45–50 of 16.6.2009.

117 EU Council Regulation 1286/2009, supra note 19.

118 See section III.3.a. above.

119 A plea of illegality under ex-Article 241 EC was raised by the applicants in an action against a country regime (Iran) in Joined Cases T-246/08 and T-332/08, Melli Bank plc, [2009] ECR II- 2629. The General Court did not address this issue.

120 M.J.C. Vile, Constitutionalism and the Separation of Powers, Liberty Fund Indianapolis, 1998 (originally published by Oxford University Press, 1967), p. 14; see also Barendt, E., “Separation of Powers and Constitutional Government”, Public Law (1995), pp. 599619.Google Scholar

121 This allows one branch to check and balance the others, see Marshall, G., Constitutional Theory (Oxford: Clarendon Press, 1971).Google Scholar

122 M.J.C. Vile, Constitutionalism, supra note 120, p. 14.

123 Eli Salzberger, “A Positive Analysis of the Doctrine of Separation of Powers, or Why Do We Have an Independent Judiciary”, 13 International Review of Law and Economics (1993), p. 349.

124 See a comparison of the American, the British and the German system with ample references to other political systems in Bruce Ackerman, “The new Separation of Powers”, 113 Harvard Law Review (Jan. 2000), pp. 634–729.

125 This principle requires that each of the institutions must exercise its powers with due regard for the powers of the other institutions (Case C-70/88 Parliament v. Council [1990] ECR I-2041, para. 22).

126 See also Alan Rosas, “Separation of Powers in the European Union”, 41 The International Lawyer (2007), pp. 1033–1046.

127 Ernst-Ulrich Petersmann, “Multilevel judicial Governance of International Trade Requires A Common conception of Rule of Law and Justice”, 10(3) Journal of International Economic Law (2007), pp. 529–551, at p. 532.

128 Ibid.

129 General Court, Kadi II, supra note 26, para. 149. See also UK Supreme Court, Ahmed, supra note 68, paras. 60 and 192, speaking of “prisoners of the State”.

130 Coming to a similar conclusion, ECCHR, “Blacklisted: Targeted Sanctions”, supra note 21.

131 See Christina Eckes, “Protecting Supremacy from External Influences: A Precondition for a European Constitutional Legal Order?”, 18(2) European Law Journal, forthcoming (March 2012).

132 See sections III.3.a., IV.2., and IV.3. above.

133 As was discussed above, an action by the Parliament challenging this practice is pending, application, OJ C 134/26.

134 Christina Eckes, “Judicial Review of European Anti-Terrorism Measures”, supra note 18, pp. 74–92.

135 See specifically on individual sanctions Christina Eckes, EU Counter- Terrorist Policies and Fundamental Rights, Chapter 5. It is also the classical idea of dualism that there is no direct hierarchical relationship between international and domestic law.

136 Article 24 of the German Constitution (Grundgesetz); Articles 52– 55 of the French Constitution; Articles 93 and 94 of the Dutch Constitution (grondwet).

137 Ibid.

138 Examples of the Court of Justice's case law concerning Security Council resolutions are Court of Justice, Kadi I, supra note 20, paras. 296–297, with reference to C-117/06, Möllendorf and Möllendorf- Niehuus [2007] ECR I-8361, para. 54; C-84/95, Bosphorus Airways [1996] ECR I-3953, para. 14; see also Opinion of AG Kokott in C-188/07, Commune de Mesquer [2008] ECR I-4501, paras. 103 and Opinion of AG Kokott in C-308/06, Intertanko [2008] ECR I-4057, para. 78. AG Kokott argued that the duty of loyalty requires to interpret European law as far as possible in a way that conflicts with the Member States’ international law obligations can be avoided.

139 General Court, Kadi II, supra note 26, para. 118.

140 Scholars have argued that the Court of Justice's decision might have negative consequences for the UN security system, e.g., Takis Tridimas, “Economic Sanctions, Procedural Rights and Judicial Scrutiny: Post-Kadi Developments”, 13 Cambridge Yearbook of European Legal Studies (2011), pp. 455–490, at p. 457; Riccardo Pavoni, “Freedom to Choose the Legal Means for Implementing UN Security Council Resolutions and the ECJ Kadi Judgment: A Misplaced Argument Hindering the Enforcement of International Law in the EC”, 28 Yearbook of European Law (2009), at p. 627; Jared Genser and Kate Barth, “When Due Process Concerns Become Dangerous: The Security Council's 1267 Regime and the Need for Reform”, 33(1) B.C. Int’l & Comp. L. Rev. (2010), at p. 24.

141 The German Constitutional Court used the Court of Justice's ruling in Kadi as one argument for its residual competence to review the compatibility of EU law with the core identity of the German legal order: Bundesverfassungsgericht (BVerfG): Lisbon decision, judgment of the Second Senate of 30 June 2009 (2 BvE 2/08; 2 BvE 5/08; 2 BvR 1010/08; 2 BvR 1022/08); 2 BvR 1259/08; 2 BvR 182/09, para. 340.

142 UK Supreme Court, Ahmed, supra note 68.

143 Examples are consistent interpretation, taking due account.

144 In this case Article 351 TFEU. See section III.1. above.

145 General Court, Kadi II, supra note 26, para. 119.

146 This approach was repeatedly suggested to the Court of Justice as a way of addressing individual sanctions originating at the UN level, Opinion of AG Maduro, C-402/05 P and C-415/05 P, Kadi I, para. 56; raised by both parties, Court of Justice, Cases C-402/05 P and C-415/05 P, Kadi I, supra note 20, paras. 256 and 319; see also Piet Eeckhout, “EC Law and UN Security Council Resolutions”, supra note 15, pp. 183 et sqq.; Ernst-Ulrich Petersmann, “Judging Judges: Do Judges Meet their Constitutional Obligation to Settle Disputes in Conformity with ‘Principles of Justice and International Law’”, EUI Working Paper Law 2008/01, pp. 24 et sqq.

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