An appeal has been lodged in the Yusuf case (T-306/01), decided by the European Court of First Instance decided in September last year. The case is not about WTO Law, but is of interest to those following the EU/WTO direct effect saga before the European courts.
Yusuf concerns a challenge to an EU regulation implementing Security Council Resolutions on sanctions, as part of the fight against terrorism. The contested regulation freezes the funds of certain persons alleged to be associated with Usama bin Laden. The CFI decided that the EC had competence to enact the regulation (relying in part on the 'necessary and proper' clause in Article 308 EC (along with Articles 60 and 301 EC which provide a 'bridge' between the EU and the EC Treaties; on the basis that it was necessary to achieve an objective of the EU rather than the EC Treaty, under the 2nd pillar.
More importantly, from the point of view of this blog, the CFI determined that it did not have jurisdiction to review the regulation in the light of the EC's general principle relating to the protection of fundamental human rights. Its reasoning is telling. First, it lays emphasis upon the primacy of the UN Charter over EC law (including Security Council Resolutions), and makes a determination that review on this basis would imply, indirectly, review of the relevant Security Council Resolutions:
'Para. 276: It must therefore be considered that the resolutions of the Security Council at issue fall, in principle, outside of the Court's judicial review and that the Court has no authority to call in question, even indirectly, their lawfulness, even indirectly, in the light of Community law.'
It is notable that the CFI cites the International Fruit case in order to justify its finding that the UN Charter, and Security Council Resolutions, are binding on the EC. There, the similarity with the GATT/WTO case law ends. In relation to the WTO, the European Courts have declined to find direct effect, even in the wake of a decision of the DSB, and even where the EC has indicated an intention to comply. It stresses the policy autonomy of the EC's political institutions, relying on nature of the dispute settlement system as spelt out in the DSU. In Yusuf, by contrast, the CFI ties the hands of the political bodies, finding that they have no discretion to adjust requirements laid down by the Security Council. Since they have no discretion, and since they are bound by the higher law of the UN Charter, their actions escape review on the basis of Community law norms. In the WTO cases, WTO law is not relevant enough to the EU legal order for it to be a ground for review. In the Yusuf case, UN Charter law is so relevant and sacrosanct that it precludes the possibility of review, lest this imply that it be called into question, even indirectly. The CFI's reasoning in Yusuf draws in part upon Article 27 VCTL, and in this sense would seem to be of broader application than just the UN Charter (see, for example, para. 232).
Piet Eeckhout suggests, cynically but fairly, that the difference between this case and the WTO cases in Yusuf international law is used to uphold an EC Regulation, but in the WTO cases international law is used in an attempt to undermine such a regulation. ('Does Europe's Constitution Stop at the Water's Edge?' at: http://www.law.kuleuven.ac.be/ccle/publications_detail.php?type=wvg&number=10)
For EU and international lawyers, Yusuf is of note also because the CFI is willing to review the legality of the regulation in the light of its conformity with norms of jus cogens, which are binding also on the Security Council. Nonetheless it upholds the regulation as being consistent with these, in large part because of the (arguably inadequate) mechanism set up providing for the re-examination of individual cases. The CFI acknowledges that this does not confer rights directly on individuals, and thus that persons are 'dependent, essentially, on the diplomatic protection afforded by the States to their nationals'. Though the protection provided in this instance is weak, it does represent an interesting instance of a judicial body looking to the review functions of non-judicial bodies, as a means of securing accountability. In this sense the 'judicial abdication' which Eeckhout ascribes to this case (rightly I think) is, at least in principle, contingent, in the sense that the abdication of authority seemed to depend upon the existence of some system for review, judicial or otherwise; albeit a palpably inadequate on in this case.