Patrolling the Borders of the EU Legal Order: Constitutional Repercussions of the Kadi-judgment

• Main Author: Jan Willem Casper Van Rossem
• Format: Article
• Language: English
• Published: University of Zagreb, Faculty of Law 2009-12-01
• Series: Croatian Yearbook of European Law and Policy
• Subjects: kadi judgment; eu fundamental rights; un security council; relationship between eu law and international law; principle of autonomy; dualism; constitutional pluralism
• Online Access: https://www.cyelp.com/index.php/cyelp/article/view/80

The recent Kadi judgment, in which the ECJ invalidated a Community regulation implementing a SC sanction resolution on account of a violation of EU fundamental rights, in several ways constitutes a landmark constitutional ruling. Particularly noteworthy are the Court’s pronouncements on the relationship between EU law and international law. Central to this reasoning is the principle of autonomy of the Community legal order. Departing from this concept, the ECJ in Kadi seems to draw a sharp and impermeable line between ‘domestic’ EU law and ‘external’ UN law. For this allegedly strong dualist approach, the Court has been severely criticised. This paper will examine to what extent this criticism is justified. It comes to the conclusion that if the premise of an autonomous legal order is accepted, the choices made by the ECJ in Kadi were legitimate. In addition, this article inquires how the Court’s approach relates to the concept of constitutional pluralism, which is very much in vogue today as an explanatory framework for the foundations of the European legal order. It is submitted that Kadi is hard to reconcile with this paradigm.