CYIL Vol. 4, 2013

EMIL RUFFER CYIL 4 ȍ2013Ȏ overruled the Court of First Instance (now General Court), 18 which had held that the EU Regulation 19 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. ” 20 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.” 21 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 18 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. 19 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). 20 C-402/05 P and C-415/05 P Kadi and Al Barakaat , para. 316 (emphasis added). 21 ibid. , para. 285.