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Yusuf and Kadi [2005]
June 14, 2007 | 1 Comment
With the decisions from September 2005 in the Yusuf and Kadi cases, the Court of First Instance of the European Communities (CFI) refused to review the European Regulation 881/2002 that contains the list of individuals and entities whose assets must be frozen, due to suspected terrorist links. Regulation 881 had been adopted by the Council of the European Union to implement a resolution of the U.N. Security Council which had enacted since 1999 and that required Member States to freeze the assets of individuals and entities affiliated to the Taliban and Al Qaeda.
Yusuf, together with the company Al Barakaat and other individuals, filed a petition to the CFI in 2001, seeking the annulment of the Regulation according to Article 230 EC Treaty. They contended that the insertion of their names in the list was inaccurate, and, moreover, that the mechanism of the insertion itself breached their fundamental rights. The CFI held that Regulation 881 and the list may not be challenged, because they derive from the U.N. Security Council determinations which bind Member States according to the U.N. Charter. Therefore, they cannot be impugned even when translated into European norms, unless they violate jus cogens. (As well known, jus cogens comprends all those norms which cannot be derogated by international agreements.)
In this case, however, the CFI found that such a measure falls outside the scope of judicial review and does not infringe the universally recognised human rights of the person (jus cogens): the right to respect for property and the right to a fair hearing. The right to judicial review, even if is one of the fundamental rights contemplated by the jus cogens, can be derogated for reasons of international peace and security.
In conclusion the CFI ruled that the EU has competence to order the freezing of individuals’ funds in the context of the battle against international terrorism.
Text of the CFI judgment in Yusuf
Text of the CFI judgment in Kadi
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