EHRM (C-402/05 P [Kadi], C-415/05 P[Al Barakaat])

The Kadi judgment of the ECJ forcefully overturned the CFI’s Yusuf/Kadi rulings dating from 2005. The ECJ did not accept that the assumed primacy of UN law and the powers of the UN Security Council prevent the European courts from reviewing EC law measures implementing UN Security Council Resolutions. According to the ECJ, it is the European legal order - being distinct from the international legal order - that determines the legal status and effect of ‘communitarized’ UN law in its own legal order. As a result, the ECJ considered itself competent to fully review EC measures implementing UN law. Moreover, the ECJ emphasized that the EC measures implementing UN law must fully comply with all fundamental rights as enshrined in the ECHR. Thus, the CFI erred when it refused to provide Kadi judicial review. In addition, the ECJ concluded that Kadi’s fundamental rights were ‘patently not respected’ by the EC legislator and the CFI. Accordingly, the ECJ set aside the CFI’s ruling and concluded that the fundamental rights of Kadi were violated. The ECJ also directed the EC legislator to modify the existing EC legislation within 3 months so as to make it compatible with its judgment.