Judgment of the EU General Court in Case T-85/09 KADI II - Main contents

Document date	27-10-2010
Publication date	22-01-2013
Reference	15577/10
From	Council Legal Service
To	COREPER (2nd part)
External link	original PDF
Original document in PDF

COUNCIL OF Brussels, 27 October 2010 PUBLIC

THE EUROPEAN UNION

15577/10

DOCUMENT PARTIALLY

ACCESSIBLE TO THE PUBLIC LIMITE

(11.11.2011)

JUR 453 RELEX 898 PESC 1364 COTER 82

INFORMATION NOTE from: Council Legal Service to: COREPER (2nd part) Subject: Judgment of the EU General Court in Case T-85/09 KADI II

Summary

• 1. 

  The judgment of the EU General Court in Case T-85/09, Kadi II, determined that the Union

  judicature should carry out a full and rigorous review of Union acts implementing the UN Consolidated List of individuals and entities subject to sanctions measures due to their association with Al Qaida and the Taliban. It also considered that the Summary of Reasons communicated to Mr. Kadi was not sufficient to ensure respect for his rights of defence and the principle of effective judicial protection. While the judgment concentrated on the relationship between the Union's institutions with listed persons or entities, it did not address the consequences of its determinations on the relationship between the Union's institutions and third countries or the United Nations Sanctions Committee.

15577/10 1 Introduction

• 2. 

  By its judgment of 30 September 2010 in Case T-85/09 ('Kadi II'), the EU General Court

  annulled Commission Regulation 1190/2008 i amending Council Regulation 881/2002 i imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, in so far as it concerned the applicant Mr. Kadi. DELETED

• 3. 

  In Case T-315/01 ('Kadi I'), the General Court (previously Court of First Instance) had

  determined that a Union act designed to give effect to a UN Security Council Resolution adopted under Charter VII of the Charter of the United Nations and affording no latitude to the Union could not be the subject of judicial review of its internal lawfulness, save with regard to its compatibility with the norms of jus cogens, and that it therefore enjoyed immunity from jurisdiction.

• 4. 

  That judgment was set aside by the Court of Justice on appeal in Joined Cases C-402/05 P and

  C-415/05 P ('Kadi and Al Barakaat'). The core finding of the Court of Justice in the appeal was that Union acts implementing the UN Consolidated List did not benefit from an immunity of jurisdiction but were subject to judicial review.

• 5. 

  In Kadi II, the General Court acknowledged that criticisms of the latter judgment of the Court of Justice "are not entirely without foundation" 1 and noted, regarding the steps taken by the

  Union's institutions to implement the Kadi and Al Barakaat judgment, "the serious difficulties

  to which the institutions and intervening governments have referred" 2 . However, given "the appellate principle itself and the hierarchical judicial structure which is its corollary" 3 , the

  General Court set out to apply rather than "revisit" the principles on the relationship between

1 Paragraph 121 of the judgment.

2 Paragraph 123 of the judgment.

3 Paragraph 121 of the judgment.

EU law and the Charter of the United Nations established by the Court of Justice. 4 It chose to

give the judgment of the Court of Justice an extensive interpretation and considered that in the

present case the Union's institutions had carried out a mere "simulacrum" of review rather

than rather than the "effective" review required by the Court.

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4 Paragraph 121 of the judgment.