Plate tectonics in Luxembourg: The ménage à trois between EC law, international law and the European Convention on Human Rights following the UN sanctions cases

Abstract

In a series of judgments over the last few years, the CFI declined jurisdiction to determine whether EC regulations which transposed UN Security Council resolutions into the EC legal order were contrary to fundamental rights. These judgments thus called into question the traditional relationship between European law and international law and the oft–repeated mantra that the EC Treaty has established a complete system of legal remedies. However, on appeal in Kadi and Al Barakaat, the ECJ overturned the CFI’s findings and reinstated the “traditional” position of the Community Courts This article analyses the reasons for the CFI’s apparent break with previous orthodoxy and the justifications put forward by the CFI to support such a move. It starts by briefly recalling how fundamental rights were introduced by the ECJ into the EC legal order. It then discusses the interaction between the Community Courts and the European Court of Human Rights and how the ECJ’s judgment in Kadi and Al Barakaat takes this interaction a step further. Finally, the article reviews the traditional relationship between EC law and international law, how the CFI’s judgments modified that relationship in relation to UN law, and why the ECJ was right to reject such a change.