Kadi II

Conor Gearty

Yves Bot had a long career as a senior French prosecutor behind him when in 2006 he joined the European Court of Justice as an Advocate General.  It has fallen to him to provide an advisory opinion in the seemingly interminable Kadi case, now winding its way back to the Court some five years after it first generated headlines, making the court (and a predecessor of Bot, Miguel Maduro) into near-celebrities in legal and human rights circles.

But why is Kadi going on and on?

The first decision in Kadi and Al Barakaat International Foundation v Council and Commission (on 3 September 2008) made such dramatic news because it as good as disapplied United Nations sanctions against suspected terrorists within the EU legal space.  As Advocate General Bot puts it ‘[i]n essence, the Court held 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 EU 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 that Treaty’ [para 16].

Strong stuff.

So strong, the Court held back from immediate implementation of its ruling.  A flurry of activity followed. Kadi was sent reasons why he was on the UN blacklist, he commented, and the Commission then issued a fresh regulation keeping him where he was but boasting in the recitals of how inclusive they had been in this new decision-making process.  Its regulation was backdated to 2002 so as to provide no chink of light for Kadi so far as getting at his funds was concerned.  In further correspondence the Commission said that the ECJ ruling did not require it to disclose any of the evidence underpinning the reasoning behind the blacklisting.

So Kadi I was great for all the human rights and civil liberties people – but not for Kadi.

Hence Kadi II. Continue reading