Judicial review of UN sanctions by the Court of First Instance

Abstract:

With its judgments in the Yusuf, Kadi and Ayad-cases, the CFI reaffirmed that UN Security Council Resolutions enjoy supremacy over all EC law and are therefore not reviewable - except if jus cogens is violated. However, as a sort of compensation the CFI has created on the basis of the Guidelines of the Sanctions Committee an obligation for the Member States to treat requests for delisting properly and expeditiously, while individuals derive a right from those Guidelines to request from the state a proper handling of the delisting request.

With its Bosphorus judgment, the ECrtHR certified this lack of judicial review before the European courts by refusing to review EC law unless the fundamental rights protection within the EC is ‘manifestly deficient’. Thus, there is no effective judicial review against UN sanctions before the ECJ/CFI and ECrtHR available. Consequently, national courts are required to fill up this lacuna by providing judicial review as a last resort. The German Constitutional Court illustrated with its European Arrest Warrant judgment that it is able and willing to take up this responsibility.