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EMIL RUFFER
CYIL 4 ȍ2013Ȏ
overruled the Court of First Instance (now General Court),
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which had held that
the EU Regulation
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implementing a binding Resolution of the Security Council
adopted under Chapter VII of the UN Charter benefited from an immunity from
jurisdiction before the EU courts. The CJEU did not accept this concept of immunity
and recalled that the Community was based on the rule of law and that international
agreements could not affect the autonomy of the Community legal system and its
review of the validity of any Community act in the light of fundamental rights,
which “
must be considered to be the expression, in a community based on the rule of
law, of a constitutional guarantee stemming from the EC Treaty
as an autonomous
legal system
which is not to be prejudiced by an international agreement.
”
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The Court
further stated that fundamental rights form an integral part of the general principles
of law, whose observance it ensures. Therefore, in the Court’s view it followed that
the obligations imposed by the UN Charter “
cannot have the effect of prejudicing
the constitutional principles of the EC Treaty, which include the principle that all
Community 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 the Treaty.”
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It follows from the above that the Court is willing to respect international law,
but only insofar as it does not jeopardise the autonomous legal system of the EU
law, with its high level of protection of fundamental rights and its complete system
of legal remedies. It does not take a stroke of genius to assume that the CJEU would
be more favourably inclined towards a relative concept of jurisdictional immunity of
States, precisely for the reasons of safeguarding judicial protection in matters falling
within the scope of EU law, as we shall illustrate in the next section.
IV. Specific cases before the CJEU concerning the jurisdictional
immunity of States
The Court of Justice has already had an opportunity to rule on the concept of
jurisdictional immunity on several occasions. It was within the framework of the
prelimiary ruling procedure under Art. 267 of the Treaty on the Functioning of
the European Union (hereinafter the “TFEU”), in which the respective national
courts requested an interpretation of EU law provisions in proceedings where the
jurisdictional immunity of States was also at stake.
Morevoer, apart from the question of jursidiction of the national court,
depending on the argument of jurisdictional immunity of the defendant State in
the light of EU law in national proceedings, the jurisidiction of the CJEU itself was
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Cases T-306/01
Yusuf & Al Barakaat International Foundation v. Council and Commission
[2005] ECR
II-3533 and T-315/01
Kadi v. Council and Commission
[2005] ECR II-3649.
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Council Regulation (EC) No. 881/2002 imposing certain specific restrictive measures directed against
certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban
(OJ L 139, 29. 5. 2002, p. 9).
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C-402/05 P and C-415/05 P
Kadi and Al Barakaat
, para. 316 (emphasis added).
21
ibid.
, para. 285.