## Facts

- The UN Security Council, acting under Chapter VII, adopted resolutions requiring asset-freezing sanctions against persons and entities associated with Al-Qaeda, the Taliban, or Usama bin Laden.
- A UN Sanctions Committee listed Yassin Abdullah Kadi and the Al Barakaat International Foundation as associated with the targeted groups.
- The European Union implemented the UN sanctions through Regulation (EC) No 881/2002, which required freezing the funds and economic resources of listed persons and entities within the EU.
- Kadi and Al Barakaat were subjected to an asset freeze in the EU without prior notice, a hearing, or disclosure of reasons and evidence supporting their listing.
- They challenged the regulation as applied to them, alleging lack of EU competence and violations of fundamental rights, including property, the right to be heard, and effective judicial protection.
- The Court of First Instance dismissed the actions, holding that EU institutions and courts could not conduct ordinary fundamental-rights review of EU measures implementing binding UN Security Council resolutions, except against jus cogens.

## Issues

1. Whether EU courts have jurisdiction to review an EU regulation implementing UN Security Council sanctions for compliance with EU fundamental rights.
2. Whether UN Charter primacy and Member State obligations preclude EU fundamental-rights review of EU implementing measures.
3. Whether Regulation (EC) No 881/2002, as applied to the appellants, violated the rights to be heard, effective judicial protection, and property.

## Decision

- The Court of Justice (Grand Chamber) held that EU courts must ensure full review of the lawfulness of EU acts in light of EU fundamental rights, including acts implementing UN Security Council resolutions.
- The Court rejected the limitation of review to jus cogens and ruled that international obligations cannot negate EU constitutional requirements governing EU acts.
- The Court found that the regulation, as applied to Kadi and Al Barakaat, breached:
  - the right to be heard (no notice, no reasons, no opportunity to respond),
  - the right to effective judicial protection (no meaningful ability to challenge the factual basis of listing), and
  - the right to property (a severe restriction imposed without adequate safeguards and without a fair balance).
- The Court annulled the regulation insofar as it concerned the appellants, but maintained its effects for three months to allow the EU institutions to remedy the procedural defects while avoiding disruption of the sanctions regime.

## Legal Principles

- EU courts have a duty to conduct full judicial review of EU measures for compliance with EU fundamental rights, even when those measures implement binding UN Security Council sanctions.
- Review focuses on the EU measure’s conformity with EU law; annulment of an EU implementing act does not constitute invalidation of the UN resolution in international law.
- Member State international obligations preserved by EU treaty provisions do not authorize EU institutions to adopt measures immune from EU fundamental-rights standards.
- Restrictive measures affecting individuals must provide, at minimum, disclosure of reasons and a genuine opportunity to challenge the listing, consistent with the rights to be heard and to effective judicial protection.
- Interferences with property may be justified by combating terrorism, but must be proportionate and accompanied by procedures capable of ensuring a fair balance between public interests and individual rights.
- Where immediate annulment would create serious public-interest disruption, a court may temporally limit the effects of annulment to permit corrective action.

## Conclusion

The Court of Justice confirmed the autonomy of the EU legal order by requiring full fundamental-rights review of EU sanctions that implement UN listings and annulled the asset-freeze regulation as applied to the appellants due to lack of reasons, lack of a hearing, and absence of effective judicial review, while temporarily preserving the regulation’s effects to allow procedural correction.


Kadi & Al Barakaat Int’l Found. v. Council & Commission, Joined Cases C-402/05 P & C-415/05 P (C.J.E.U. 2008)