Patrolling the Borders of the EU Legal Order: Constitutional Repercussions of the Kadi-judgment
Abstract
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 justifi ed. 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.
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