'Trying to Have it Both Ways' - On the First Judgments of the Court of First Instance Concerning EC Acts Adopted in the Fight Against International Terrorism

Abstract

Faced with the delicate argument that the contested EC regulation providing for the freezing of assets of persons associated with Usama bin Laden, the AL-Qaeda network and the Taliban, and adopted by the Council in order to implement various decisions of the UNSC, infringes fundamental rights as recognised in the Community legal order, the Court of First Instance has offered two landmark rulings (see Case T-306/01, Ahmen Ali Yusuf and Al Barakaat International Foundation v. Council of the EU and Commission of the EC, unreported, 21 September 2005 and Case T-315/01, Yassin Abdullah Kadi v. Council of the EU and Commission of the EC, unreported, 21 September 2005). Its reasoning is nonetheless quite Byzantine. Indeed, the Court first appears to renounce by ruling that it lacks jurisdiction to call indirectly into question the lawfulness of UNSC resolutions in the light of EC law or of fundamental rights as recognised in the EC legal order. Subsequently, and quite surprisingly as it appears prima facie in contradiction with its previous assertion, the CFI elaborates a sophisticated exception to its lack of jurisdiction: it grants itself the power to indirectly review UNSC resolutions in light of the fundamental rights falling within the scope of jus cogens.

Keywords: Terrorism, European Community Law, United Nations Security Council, Jurisdiction, Jus Cogens, Fundamental Rights