Faraj Hassan v Council of the European Union and European Commission (C-399/06 P) and Chafiq Ayadi v Council of the European Union (C-403/06 P).
Date: 2009-12-03
69. In the judgments under appeal, and relying on its judgments in Yusuf  and Kadi , the Court of First Instance essentially held that it follows from the principles governing the relationship between the international legal order under the United Nations and the Community legal order that the contested regulation, because it is designed to give effect to a resolution adopted by the Security Council under Chapter VII of the Charter of the United Nations affording no latitude in that respect, may not be the subject of judicial review of its internal lawfulness save with regard to its compatibility with the norms of jus cogens and therefore enjoys, subject to that reservation, immunity from jurisdiction ( Hassan , paragraph 92, and Ayadi , paragraph 116).
70. Again relying on its judgments in Yusuf  and Kadi , the Court of First Instance held, therefore, that it is with regard to jus cogens , understood as a public international order binding on all subjects of international law, including the bodies of the United Nations, and from which no derogation is possible, that the lawfulness of the contested regulation may be examined, in relation also to the appellants’ pleas alleging breach of their fundamental rights ( Hassan , paragraph 92, and Ayadi , paragraph 116).
71. It is apparent from paragraphs 326 and 327 of Kadi  on appeal that that reasoning amounts to an error of law. The Community judicature must, in accordance with the powers conferred on it by the Treaty, ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like the contested regulation, are designed to give effect to the resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations.
72. The Court concluded, in paragraph 328 of Kadi  on appeal, that the grounds of appeal put forward by the persons concerned being well founded on that point, it was necessary to set aside Yusuf  and Kadi  at first instance in that respect.
73. In addition, the Court held, in paragraph 330 of Kadi  on appeal, that because in the latter parts of Yusuf  and Kadi  at first instance, relating to the specific fundamental rights invoked by the appellants, the Court of First Instance had confined itself to examining the lawfulness of the contested regulation in the light of the rules of jus cogens alone, when it was its duty to carry out an examination, in principle a full examination, in the light of the fundamental rights forming part of the general principles of Community law, the latter parts of those judgments also had to be set aside.
74. It follows that, given that the legal grounds of the judgments under appeal are, as pointed out in paragraphs 69 and 70 above, the same as those relied on in Yusuf  and Kadi  at first instance, the judgments under appeal are marred by the same error in law and must, therefore, for the same reasons, be set aside in so far as they contain the Court of First Instance’s response to the appellants’ arguments alleging breach of certain of their fundamental rights.
75. That conclusion is not called in question by the addition, in paragraphs 95 to 125 of Hassan  and in paragraphs 117 to 155 of Ayadi , of a number of points in response to the arguments more specifically propounded by the appellants, given that the Court of First Instance concluded that those points demonstrate the correctness of the legal grounds of Yusuf  and Kadi  at first instance and, in consequence, of the judgments under appeal.