Terrorism and the ECJ: empowerment and democracy in the EC legal order

In its judgment in Kadi & Al Barakaat International Foundation v Council (C-402/05 P & C-415/05 P) Not yet reported September 3, 2008, the ECJ held that the Community has competence to adopt economic sanctions not only against states but also against individuals on the basis of Arts 301, 60 and 308 EC. It also held that UN Security Council resolutions are binding only in international law and cannot take precedence over the Community’s internal standards for the protection of fundamental rights. The judgment raises some profound constitutional questions pertaining to the competence of the Community, its relationship with international law and the scope of fundamental rights protection. In parallel, in a number of cases culminating in its judgment of October 23, 2008 in People’s Mojahedin Organisation of Iran v Council (OMPI II) (T-256/07), the CFI has annulled anti-terrorist sanctions imposed by the European Community indicating a strong adherence to process rights. The purpose of this contribution is to discuss the above case law and its implications.