¹ Art 24 UN Charter.

² Ibid art 25.

³ Ibid art 103 provides: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’ This has been held to extend to SC Resolutions adopted under Chapter VII of the UN Charter. See Case Concerning Questions of Interpretation and Application of the Montreal Convention Arising out of the Aerial Incident at Lockerbie (Libya v UK) (Provisional Measures) [1992] ICJ Reports 3.

⁴ For example, as regards the European Court of Human Rights, see Nada v Switzerland App No 10593/08 33 BHRC 453 (2013) 56 EHRR 18; Al Jedda v UK App No 27021/08 (2011) 53 EHRR 23; Behrami v France, Saramati v France, Germany and Norway App Nos 71412/01 and 78166/01 (2007) 45 EHRR SE10; Bosphorus v Ireland App No 45036/98 (2006) 42 EHRR 1. As regards the UK courts, see A v HM Treasury [2010] UKSC 2, [2010] 2 AC 534; R (on the Application of Al-Jedda) v Secretary of State for Defence [2007] UKHL 58, [2008] 1 AC 332.

⁵ For a discussion, see Tzanakopoulos, A, ‘Domestic Court Reactions to UN Security Council Sanctions’ in Reinisch, A (ed), Challenging Acts of International Organizations before National Courts (Oxford, Oxford University Press, 2010)Google Scholar.

⁶ Although EU measures implementing SC Resolutions had been considered in the past. See in particular Case C-84/95 Bosphorus v Minister for Transport, Energy and Communications, Ireland and the Attorney General [1996] ECR I-3953.

⁷ These were implemented by means of Common Position 2002/402/CFSP [2002] OJ L169/4 and Council Regulation 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan [2002] OJ L139/9. The latter was later amended by Council Regulation 1286/2009 of 22 December 2009 amending Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban [2009] OJ L346/42.

⁸ UN SC Resolution 1267 (1999) first required states to freeze the funds of the Taliban. This was later expanded to cover Usama bin Laden, the Al-Qaida organisation, and any other person associated with them. In 2001, after the Taliban were defeated, the sanctions were maintained by UN SC Resolution 1390 (2002). For the first time, individuals were targeted despite their lacking any link to a particular country, which also turned the regime into one targeted mainly at the combating of terrorism. The regime was split into two by UN SC Resolutions 1988 (2011) and 1989 (2011). The Al-Qaida organisation continues to be targeted under SC Resolution 1390, which is the focus here, whilst the Taliban are now subject to a separate regime.

⁹ The Sanctions Committee was established by SC UN Resolution 1267 (1999). It is to draw up the list of persons associated with Al-Qaida on the basis of information received to it by states and international organisations.

¹⁰ Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat v Council and Commission [2008] ECR I-6351 (ECJ, Kadi I).

¹¹ Case T-315/01 Kadi v Council and Commission [2005] ECR II-3649 (GC, Kadi I). See also Case T-306/01 Yusuf v Council and Commission [2005] ECR II-3533 delivered on the same day. The judgment was subject to severe criticism. See, for example, Eeckhout, P, ‘Community Terrorism Listings, Fundamental Rights, and UN Security Council Resolutions: In Search of the Right Fit’ (2007) 3 European Constitutional Law Review 183 CrossRefGoogle Scholar; Vlcek, W, ‘Acts to Combat the Financing of Terrorism: Common Foreign and Security Policy at the European Court of Justice’ (2006) 11 European Foreign Affairs Review 491 Google Scholar.

¹² Above n 7.

¹³ Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, pending.

¹⁴ Part of the argument revolving around the relevance of the principle of loyal cooperation has already been articulated and explored in E Nanopoulos, ‘The Implementation of Security Council Resolutions in the EU Revisited’ (2013) Hungarian Yearbook of European and International Law, forthcoming.

¹⁵ ECJ, Kadi I (n 10) [285].

¹⁶ Case 6/64 Costa v ENEL [1964] ECR 585.

¹⁷ Case 294/83 Les Verts v Parliament [1986] ECR-1339.

¹⁸ Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1.

¹⁹ Although the words ‘of international law’ were dropped in Costa v ENEL (n 15), de Witte convincingly argues that this cannot have any real significance: de Witte, B, ‘European Union Law: How Autonomous is its Legal Order?’ (2010) 65 Zeitschrift für Öffentliches Recht 141 CrossRefGoogle Scholar.

²⁰ In Costa v ENEL (n 15), the CJEU expressly differentiated the EEC Treaties from other international agreements: ‘By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply’ (emphasis added).

²¹ Opinion 1/91 [1991] ECR I-6079 [2].

²² Ibid [35].

²³ Opinion 1/00 [2002] ECR I-3493; Case C-459/03 Commission v Ireland (Mox Plant) [2006] ECR I-4635; Opinion 1/09 of 8 March 2011 [2011] ECR I-01137.

²⁴ For an engaging debate, see Schilling, T, ‘The Autonomy of the Community Legal Order: An Analysis of Possible Foundations’ (1996) 37 Harvard International Law Journal 389 Google Scholar; and Weiler, JHH and Haltern, UR, ‘The Autonomy of the Community Legal Order—Through the Looking Glass’ (1996) 37 Harvard International Law Journal 411 Google Scholar.

²⁵ Jan Willem van Rossem thus argues that the claim to autonomy is a disguised claim to sovereignty. See van Rossem, JW, ‘The Autonomy of EU Law: More is Less?’ in Wessel, RA and Blockmans, S (eds), Between Autonomy and Dependence: The EU Legal Order under the Influence of International Organisations (Berlin, Springer, 2013)Google Scholar.

²⁶ De Witte (n 19).

²⁷ ECJ, Kadi I (n 10) [282].

²⁸ Ibid [317].

²⁹ Ibid [298].

³⁰ Nada (n 4). This is in line with art 27 of the Vienna Convention on the Law of Treaties, which states that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This provision is not a primacy clause, but merely lays down the principle that if a state fails to fulfil its obligations under international law, it cannot rely on its domestic constitutional requirements to escape international responsibility.

³¹ ECJ, Kadi I (n 10) [300].

³² Ibid [326].

³³ Case T-85/09 Kadi v European Commission [2010] ECR II-05177 [132] (GC, Kadi II).

³⁴ Ibid [134].

³⁵ This line of case law started with Case T-228/02 Organisation des Modjahedines du peuple d’Iran v Council (OMPI) [2006] ECR II-4665. See also, for example, Case T-256/07 People’s Mojahedin Organization of Iran v Council [2008] ECR II-3019 and Case T-284/08 People’s Mojahedin Organization of Iran v Council [2008] ECR II-3487.

³⁶ For example, the Commission was advocating a standard of review that would be limited to ‘wholly manifest errors of fact or assessment, such as an error as to the identity of the person designated’. See GC, Kadi II (n 31) [96].

³⁷ OMPI (n 35) [154]–[159].

³⁸ Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Kadi II, Opinion of Advocate General Bot, delivered on 19 March 2013.

³⁹ Ibid [57].

⁴⁰ Ibid [60].

⁴¹ Ibid [61].

⁴² Ibid [293]–[294].

⁴³ This was first articulated by the German Constitutional Court in its famous Solange case. See BVerfGE 37, 271 Internationale Handelsgesellschaft mbH v Einfuhrund Vorratsstelle für Getreide und Futtermittel (Solange I) [1974] 2 CMLR 540; and BVerfGE, 73, 339 re Wünsche Handelsgesellschaft (Solange II) [1987] 3 CMLR 225.

⁴⁴ See, for example, Kokott, J and Sobotta, C, ‘The Kadi Case—Constitutional Core Values and International Law—Finding the Balance?’ (2012) 23 European Journal International Law 1015 CrossRefGoogle Scholar; and Ziegler, KS, ‘Case Comment: Strengthening the Rule of Law, but Fragmenting International Law: The Kadi Decision of the CJEU from the Perspective of Human Rights’ (2009) 9 Human Rights Law Review 288, 300CrossRefGoogle Scholar. For the view that this does not, however, sit well with the general thrust of the CJEU’s judgment, see Draghici, C, ‘Suspected Terrorists’ Rights between the Fragmentation and Merger of Legal Orders: Reflections in the Margin of the Kadi ECJ Appeal Judgment’ (2009) 8 Washington University Global Studies Law Review 627, 651Google Scholar.

⁴⁵ CJEU, Kadi I (n 10) [321]–[325].

⁴⁶ Lang, J Temple, ‘The Most Important “General Principle” of Community Law’ in Bernitz, U, Nergelius, J and Cardner, C (eds), General Principles of EC Law in a Process of Development (Dordrecht, Kluwer Law International, 2008) 77 Google Scholar.

⁴⁷ Case C-105/03 Criminal Proceedings against Maria Pupino [2005] ECR I-5285.

⁴⁸ On the duties imposed upon national courts, see Lang, JT, ‘Developments, Issues, and New Remedies—The Duties of National Authorities and Courts under Article 10 of the EC Treaty’ (2004) 27 Fordham International Law Journal 6 Google Scholar.

⁴⁹ Joined Cases C-36/97 and 37/97 Hilmar Kellinghusen v Amt fur Land und Wasseerwirtschaft Kiel [1998] ECR I-6337 [30]. For early statements that art 5 EEC imposes a duty of genuine cooperation on the Member States and the then Community institutions, see also Case 94/87 Commission v Federal Republic of Germany [1989] ECR 175 [9]; and Case 52/84 Commission v Belgium [1986] ECR 89 [16]. On these cases, see also Timmermans, CWA, ‘The Basic Principles’ in Kapteyn, PJG, McDonnell, AM, Mortelmans, KJM and Timmermans, CWA (eds), The Law of the European Union and the European Communities, 4th edn (Dordrecht, Kluwer Law International, 2008) 154 Google Scholar.

⁵⁰ For a detailed account of the duties created by the principle of loyal cooperation, see Lang, JT, ‘The Development by the Court of Justice of the Duties of Cooperation of National Authorities and Community Institution under Article 10 EC’ (2008) 31 Fordham International Law Journal 5 Google Scholar.

⁵¹ Timmermans (n 47), 147; LW Gormley, ‘Some Further Reflections on the Development of General Principles of Law Within Article 10 EC’ in Bernitz, Nergelius and Cardner (eds) (n 46) 303.

⁵² Article 351(1) TFEU provides: ‘The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties.’

⁵³ GC, Kadi I (n 11) [197].

⁵⁴ Case 812/79 Burgoa [1980] ECR 2787 [9].

⁵⁵ Manzini, P, ‘The Priority of Pre-existing Treaties of EC Member States within the Framework of International Law’ (2001) 12 European Journal of International Law 781, 784CrossRefGoogle Scholar.

⁵⁶ Indeed, this provision was used by the Member States in the early days to justify the imposition of sanctions against a third country under the so-called Rhodesia doctrine.

⁵⁷ The EPC was a forum where representatives of the Member States met to discuss political issues of common concern. It was formalised by the 1970 Luxembourg Report.

⁵⁸ For a detailed account of the history of sanctions in the EU, see Koutrakos, P, Trade, Foreign Policy and Defence in EU Constitutional Law: The Legal Regulation of Sanctions, Exports of Dual Use Goods and Armaments (Oxford, Hart Publishing, 2001)Google Scholar.

⁵⁹ See old arts 60 EC and 301 EC.

⁶⁰ This was suggested by Professor Dashwood: Dashwood, A, ‘Mixity in the Era of the Treaty of Lisbon’ in Hillion, C and Koutrakos, P (eds), Mixed Agreements Revisited (Oxford, Hart Publishing, 2010)Google Scholar.

⁶¹ That decision is normally based on art 29 TEU pursuant to which the Council ‘shall adopt decisions which shall define the approach of the Union to a particular matter of geographical or thematic nature’. This corresponds to the old definition of CFSP Common Positions, which were also commonly used for the adoption of economic sanctions before the entry into force of the Treaty of Lisbon. See art 15 of the old TEU.

⁶² A number of authors share the view that art 215 TFEU has not superseded the Member States’ powers to give effect to Resolutions of the SC. See, for example, Gattini, A, ‘Effects of Decisions of the UN Security Council in the EU Legal Order’ in Cannizzaro, E, Palchetti, P and Wessel, RA (eds), International Law as Law of the European Union (Leiden, Martinus Nijhoff, 2012) 221 Google Scholar.

⁶³ Although it would be difficult to hold that this coincides with the classical notion of pre-emption given that neither the CFSP nor in fact art 215 TFEU is listed in art 3 TEU among the areas of shared competences.

⁶⁴ Koutrakos, P, ‘Is Article 297 EC a “Reserve of Sovereignty”?’ (2000) 37 CML Rev 1339, 1360Google Scholar; Canor, I, ‘Can Two Walk Together, Except They Be Agreed? The Relationship between International Law and European Law: The Incorporation of United Nations Sanctions against Yugoslavia into European Community Law through the Perspective of the European Court of Justice’ (1998) 35 CML Rev 137 Google Scholar.

⁶⁵ Thus, for example, in the UK, the sanctions against Al-Qaida are given effect to by means of Orders in Council, even though there is a directly applicable regulation governing the field.

⁶⁶ Council Regulation 877/82 of 16 April 1982 suspending imports of all products originating in Argentina [1982] OJ L102/1.

⁶⁷ Ibid Recital 2.

⁶⁸ Ibid Recital 3.

⁶⁹ See art 347 TFEU.

⁷⁰ If they do not, the Member States are arguably still free to act alone, so the problem of misimplementation does not arise.

⁷¹ See art 19 TEU, which provides that the CJEU shall ensure that, in the application and interpretation of the treaties, the law is upheld; art 263(3) TFEU, which includes among the grounds for review a breach of the Treaty or any other rule of law relating to its application; and art 340 TFEU, which refers to the general principles common to the laws of the Member States when defining the EU’s non-contractual liability.

⁷² Craig, P and de Búrca, G, EU Law: Text, Cases and Materials, 5th edn (Oxford, Oxford University Press, 2011) 109 CrossRefGoogle Scholar.

⁷³ Tridimas, T, General Principles of EU Law, 2nd edn (Oxford, Oxford University Press, 2005) 51 Google Scholar.

⁷⁴ J Kokott and C Sobotta, ‘The Charter of Fundamental Rights of the European Union after Lisbon’ (2010) EUI Working Paper AEL 2010/6, Academy of European Law. Available at: http://cadmus.eui.eu/bitstream/handle/1814/15208/AEL_WP_2010_06.pdf?sequence=3, 6.

⁷⁵ ECJ, Kadi I (n 10) [301].

⁷⁶ Ibid [303].

⁷⁷ Skouris, V, ‘Fundamental Rights and Fundamental Freedoms: The Challenge of Striking a Delicate Balance’ (2006) 17 European Business Law Review 225, 238Google Scholar.

⁷⁸ See Peech, L, ‘“A Union Founded on the Rule of Law”: Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law’ (2010) 6 European Constitutional Law Review 365 Google Scholar.

⁷⁹ Case C-260/89 ERT v Dimotiki Etairia Pliroforissis and Siotirios Kouvelas [1991] ECR I-2925.

⁸⁰ See the special jurisdiction of the CJEU under art 348 TFEU: ‘By way of derogation from the procedure laid down in Articles 258 and 259, the Commission or any Member State may bring the matter directly before the Court of Justice if it considers that another Member State is making improper use of the powers provided for in Articles 346 and 347.’ On the powers of the CJEU under this provision, see the Opinion of AG Jacobs in Case C-120/94 R Commission v Hellenic Republic (FYROM) [1996] ECR I-1513.

⁸¹ Lavranos, N, ‘Revisiting Article 307 EC: The Untouchable Core of Fundamental European Constitutional Law Values and Principles’ in Fontanelli, F, Martinico, G and Carrozza, P (eds), Shaping the Rule of Law through Dialogue: International and Supranational Experiences (Groningen, Europa Law Publishing, 2009)Google Scholar.

⁸² Case 5/88 Wachauf [1989] ECR 2609 [19].

⁸³ ERT (n 79) [43].

⁸⁴ Although the explanations to the Charter provide that ‘the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law’.

⁸⁵ Case C-617/10 Åklagaren v Hans Åkerberg Fransson (ECJ, 26 February 2013).

⁸⁶ Ibid 18.

⁸⁷ Ibid 21.

⁸⁸ See, for example, the famous cases of Viking, on the freedom of establishment, and Laval, on the freedom of services: Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line [2007] ECR I-10779; and Case C-341/05 Laval v Svenska Byggnadsarbetareförbundet [2007] ECR I-11767.

⁸⁹ C Brown, ‘Case C-112/00, Eugen Schmidberger, Internationale Transporte und Planzüge v Austria’ (2003) CML Rev 1499.

⁹⁰ Although this is not always the case. See in particular Case C-112/00 Eugen Schmidberger v Republik Österreich [2003] ECR I-5659; and Case C-36/02 Omega Spielhallen v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609.

⁹¹ See Case T-253/02 Ayadi v Council [2006] ECR II-2139; and Case T-49/04 Hassan v Council and Commission [2006] ECR II-52.

⁹² UN SC Resolution 1730 (2006).

⁹³ ECJ, Kadi I (n 10) [322].

⁹⁴ In Kadi II, the GC confirmed that it did not provide ‘an effective judicial procedure for review of decisions of the Sanctions Committee’: see GC, Kadi II (n 33) [128]. The same conclusion was reached by the House of Lords in A v HM Treasury (n 4) [413]–[414].

⁹⁵ UNSC Resolution 1989 (2011), particularly paras 21–35. On these developments, see Tladi, D and Taylor, G, ‘On the Al-Qaida/Taliban Sanctions Regime: Due Process and Sunsetting’ (2011) 10 Chinese Journal of International Law 771 CrossRefGoogle Scholar; Kokott and Sobotta (n 44).

⁹⁶ UN SC Resolution 1735 (2006), para 5; UN SC Resolution 1617 (2005), para 4.

⁹⁷ UN SC Resolution 1617, para 6.

⁹⁸ The ECJ considered the question in relation to the focal point in Kadi I and the GC considered the original version of the ombudsperson in Kadi II.

⁹⁹ Kokott and Sobotta (n 44) 1021.

¹⁰⁰ Kadi was delisted by the SC in October 2012.

¹⁰¹ See, for example, de Búrca, G, ‘The European Court of Justice and the International Legal Order after Kadi ’ (2010) 51 Harvard International Law Journal 1 Google Scholar; and Gattini, A, ‘Joined Cases C-402/05P & 415/05P’ (2009) 46 CML Rev 213 Google Scholar.

¹⁰² AG Bot, Kadi II (n 38) [67].

¹⁰³ See de Búrca, G, Nollkaemper, A and Canor, I, ‘The European Courts and the Security Council: Between Dédoublement Fonctionnel and Balancing of Values: Three Replies to Pasquale De Sena and Marla Chiara Vitucci’ (2009) 20 European Journal of International Law 853, 865CrossRefGoogle Scholar. On the status of SC Resolutions in domestic legal orders more broadly, see Debbas, V Gowlland (ed), National Implementation of United Nations Sanctions: A Comparative Study (Leiden, Martinus Nijhoff, 2004)Google Scholar; and Lavranos, N, Legal Interaction between Decisions of International Organisations and European Law (Groningen, Europa Law Publishing, 2004) 100–10Google Scholar in particular for the status and effects of SC Resolutions in Germany, France and the Netherlands.

¹⁰⁴ On the difficulties facing the Court in dealing with confidential information, see Nanopoulos, E, ‘The Fight against Terrorism, Fundamental Rights and the EU Courts: The Unsolved Conundrum’ (2012) 14 Cambridge Yearbook of European Legal Studies 269 CrossRefGoogle Scholar.

¹⁰⁵ L Ginsborg and M Scheinin, ‘Judicial Powers, Due Process and Evidence in the Security Council 1267 Terrorist Sanctions Regime: The Kadi II Conundrum’ (2011) EUI Working Paper RSCAS 2011/44, available at: http://cadmus.eui.eu/bitstream/handle/1814/18238/RSCAS_2011_44.pdf?sequence=1, 10; Lavranos (n 101).

¹⁰⁶ This was implemented by Common Position 2001/931/CFSP [2001] OJ L344/9 and Council Regulation 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism [2001] OJ L344/70.

¹⁰⁷ For the listing procedure, see art 1(4) Common Position 2001/931/CFSP [2001] OJ L344/9.

¹⁰⁸ OMPI (n 33) [123]–[124], emphasis added.

¹⁰⁹ Many constitutional courts subject their acceptance of the supremacy of EU law on the continuous respect for fundamental rights. See, eg, Solange II (n 41).