Kadi 사건이 EU법에 미친 영향에 대한 연구

Since 1999, the UN Security Council passed resolutions imposing non-military enforcement actions under Article 41 of Chapter VII of the UN Charter, targeting Osama Bin Laden and his followers. Based on the resolutions, the EU adopted legal acts to implement them, and Mr. Kadi was named in the resolutions and EU legal acts. He sought the annulment of the EU legal acts in question before the European Court of Justice. Smart sanctions, unlike the UNs conventional method targeting only countries, aim at individuals or entities concerned to mitigate the side effect of non-military enforcement actions and maximize their effectiveness while the non-confidentiality of evidences and information supporting the charges against the addressees raise issues concerning human rights violations, including the right to be heard guaranteed by the EU law. This issue was addressed in Kadi cases. The Kadi cases comprise the Kadi I and the Kadi II. The Kadi I ruling by the “Court of First Instance” (renamed the General Court afterwards) and the subsequent ones (including the General Court’s Kadi II decision) by the “Court of Justice” (the court of appeal of the EU) show two opposing views. The key issue was whether EU legislations enacted to implement the UN Security Council resolution are subject to judicial review before the “Court of Justice of the EU”(which term includes the “Court of Justice” and the “General Court”). On the basis of Article 103 of the UN Charter and Article 307 of the TEC (TFEU §351), the Court of First Instance ruled that it had to admit the superiority of international law and had only jurisdiction over the formal or procedural lawfulness of the EU legislations. The Court thought that the examination of the substantive lawfulness of EU legislations would mean the indirect, not-allowed, review of the Security Council’s resolutions as such. It also said that the UN sanctions committee’s review process and its ombudsman system are administrative remedies, but that only providing administrative remedies for individuals or entities concerned is not a violation of international law. On the other hand, the resolutions of the Security Council were indirectly reviewed, although the Court found that it did not violate human rights as a rule of jus congens. The Court of Justice safeguarded the autonomy of EU law on the basis of the dualistic thinking. The resolutions of the Security Council on the one hand and EU legislations on the other were fully separated to determine whether the latter infringed on human rights guaranteed by the EU law, and to examine the substantive lawfulness. In other words, it was ruled that it had jurisdiction over a full judicial review. It excluded the introduction of jus cogens and denied the indirect review of the Security Council resolution. The Court ruled that Article 307 of the TEC (TFEU §351) does not apply to human rights which are constitutional principles of the EU, that administrative remedies were not sufficient, and that judicial protection should have been given to Kadi. Actually, the Court of Justice did not take so firm a stand: it put strings on its member states, but has not yet pulled them. The Court of Justice temporarily suspended the cancellation of the restrictive measures in respect of Kadi in the Kadi I ruling, and the Kadi II ruling came out immediately after Kadi was lifted from the list of the Security Council Sanctions Committee. In the latter case, the Court of Justice could have sentenced earlier than the decision of the Sanctions Committee delisting Mr. Kadi. In short, the conflict between the EU law and the UN law looks like they have crossed a legal bridge that cannot be returned to, but this has not been materialized in reality. The Court might have had considered the UN’s position while its decision may also be interpreted as a sign that the Court is mindful of the resistance of the member states. In other words, the EU may not force member states to make a choice until there is sufficient support from the member states of the EU who are fated to be directly responsible for the violation of the UN Charter. This is because it could result in its own defeat. Ten years have passed since the Kadi I ruling (2008) of the Court of Justice of the EU came out, and I think it’s time to look back on the Kadi cases in the cold light of day.