Advocate General Opinion

In the Opinion of Advocate General Maduro, EU law did not need to unconditionally bow to international law if a possible consequence was a violation of basic constitutional principles.

21. This brings us to the question of how the relationship between the International legal order and the Community legal order must be described. The logical starting point of our discussion should, of course, be the landmark ruling in Van Gend en Loos, in which the Court affirmed the autonomy of the Community legal order. The Court held that the Treaty is not merely an agreement between States, but an agreement between the peoples of Europe. It considered that the Treaty had established a 'new legal order', beholden to, but distinct from the existing legal order of public international law. In other words, the Treaty has created a municipal legal order of trans-national dimensions, of which it forms the 'basic constitutional charter'.

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24. All these cases have in common that, although the Court takes great care to respect the obligations that are incumbent on the Community by virtue of international law, it seeks, first and foremost, to preserve the constitutional framework created by the Treaty. Thus, it would be wrong to conclude that, once the Community is bound by a rule of international law, the Community Courts must bow to that rule with complete acquiescence and apply it unconditionally in the Community legal order. The relationship between international law and the Community legal order is governed by the Community legal order itself, and international law can permeate that legal order only under the conditions set by the constitutional principles of the Community.

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43. I disagree with the respondents. They advocate a type of judicial review that at heart is very similar to the approach taken by the Court of First Instance under the heading of jus cogens. In a sense, their argument is yet another expression of the belief that the present case concerns a 'political question' and that the Court, unlike the political institutions, is not in a position to deal adequately with such questions. The reason would be that the matters at issue are of international significance and any intervention of the Court might upset globally-coordinated efforts to combat terrorism. The argument is also closely connected with the view that courts are ill equipped to determine which measures are appropriate to prevent international terrorism. The Security Council, in contrast, presumably has the expertise to make that determination. For these reasons, the respondents conclude that the Court should treat assessments made by the Security Council with the utmost deference and, if it does anything at all, should exercise a minimal review in respect of Community acts based on those assessments.

44. It is true that courts ought not to be institutionally blind. Thus, the Court should be mindful of the international context in which it operates and conscious of its limitations. It should be aware of the impact its rulings may have outside the confines of the Community. In an increasingly interdependent world, different legal orders will have to endeavour to accommodate each other's jurisdictional claims. As a result, the Court cannot always assert a monopoly on determining how certain fundamental interests ought to be reconciled. It must, where possible, recognise the authority of institutions, such as the Security Council, that are established under a different legal order than its own and that are sometimes better placed to weigh those fundamental interests. However, the Court cannot, in deference to the views of those institutions, turn its back on the fundamental values that lie at the basis of the Community legal order and which it has the duty to protect. Respect for other institutions is meaningful only if it can be built on a shared understanding of these values and on a mutual commitment to protect them. Consequently, in situations where the Community's fundamental values are in the balance, the Court may be required to reassess, and possibly annul, measures adopted by the Community institutions, even when those measures reflect the wishes of the Security Council.

45. The fact that the measures at issue are intended to suppress international terrorism should not inhibit the Court from fulfilling its duty to preserve the rule of law. In doing so, rather than trespassing into the domain of politics, the Court is reaffirming the limits that the law imposes on certain political decisions. This is never an easy task, and, indeed, it is a great challenge for a court to apply wisdom in matters relating to the threat of terrorism. Yet, the same holds true for the political institutions. Especially in matters of public security, the political process is liable to become overly responsive to immediate popular concerns, leading the authorities to allay the anxieties of the many at the expense of the rights of a few. This is precisely when courts ought to get involved, in order to ensure that the political necessities of today do not become the legal realities of tomorrow. Their responsibility is to guarantee that what may be politically expedient at a particular moment also complies with the rule of law without which, in the long run, no democratic society can truly prosper. In the words of Aharon Barak, the former President on the Supreme Court of Israel:

'It is when the cannons roar that we especially need the laws … Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law. There is always law which the state must comply with. There are no "black holes". … The reason at the foundation of this approach is not only the pragmatic consequence of the political and normative reality. Its roots lie much deeper. It is an expression of the difference between a democratic state fighting for its life and the fighting of terrorists rising up against it. The state fights in the name of the law and in the name of upholding the law. The terrorists fight against the law, while violating it. The war against terrorism is also law's war against those who rise up against it.'^[1]

46. There is no reason, therefore, for the Court to depart, in the present case, from its usual interpretation of the fundamental rights that have been invoked by the appellant. The only novel question is whether the concrete needs raised by the prevention of international terrorism justify restrictions on the fundamental rights of the appellant that would otherwise not be acceptable. This does not entail a different conception of those fundamental rights and the applicable standard of review. It simply means that the weight to be given to the different interests which are always to be balanced in the application of the fundamental rights at issue may be different as a consequence of the specific needs arising from the prevention of international terrorism. But this is to be assessed in a normal exercise of judicial review by this Court. The present circumstances may result in a different balance being struck among the values involved in the protection of fundamental rights but the standard of protection afforded by them ought not to change.

General Court

The General Court held that the Regulation was valid. Although agreements with a non-members ordinarily prevail, they cannot prevail over provisions forming a core part of the constitutional foundations of the EU system. 233–259, Security Council resolution was binding on all UN members (UN Charter Article 25) and prevailed over all treaties (Article 103). They must be carried out even if in conflict with EU treaties.

Member states were parties to the UN Charter before the EU treaties and so TFEU Article 351(1) required fulfilment of the Charter obligations. That meant the resolution prevailed over EU law. The EU was not bound under international law, but it was bound in EU law, following from International Fruit Company (1972) Case 21-4/72, [1972] ECHR 1219. There was also no infringement of a jus cogens norm by the resolution.

Court of Justice

The Court of Justice held the regulation was invalid in EU law. The court had no jurisdiction to review the legality of Security Council Resolutions, but it could review EU regulations. The regulation was adopted to give effect to Member State obligations. Although under international law Security Council Resolutions prevail, under EU law the hierarchy of norms differs. It rejected that TFEU art 351 protected the Regulation from challenge. The Regulation was annulled in relation to Kadi, but effect maintained for a limited period.

281. In this connection it is to be borne in mind that the Community is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EC Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions (Case 294/83 Les Verts v Parliament [1986] ECR 1339, paragraph 23).

282. At 'the very foundations of the Community' are certain norms.

285. It follows from all those considerations that the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty.

300. A treaty can never enjoy primacy over provisions (including protection of fundamental human rights) that form part of the constitutional foundations of the union.

303. 'the principles enshrined... as a foundation of the Union'

304. 'the principles that form part of the very community legal order'

305-9. Even if the UN Charter were binding on the EU, it would not take primacy over the constitutive treaties, or the constitutional foundations of the EU system.