Völkerrecht bricht Rechtsgemeinschaft?: Zu den rechtlichen Folgen einer Umsetzung von Resolutionen des UN-Sicherheitsrates durch die EG

On 21 September 2005, the European Court of First Instance (CFI) rejected two actions of several persons as unfounded. They had requested annulment of regulations putting into effect some resolutions of the Security Council aimed at the Taliban, Usama bin Laden and the Al-Qaeda network, and at individuals and entities associated with them. Following the wording of the resolutions the contested regulations order the freezing of the funds of the persons and entities concerned. These persons and entities are included in a list annexed to the regulations, regularly reviewed by the Commission, on the basis of updating by the Sanctions Committee. The applicants whose funds had been frozen on the basis of these regulations claimed among other things that the Council had infringed their right to property as well as their rights of defence. In particular, they asserted that there had been an error of assessment of the facts and evidence relied on by the Security Council.The CFI rejected these allegations without scrutinizing them. It found that it had no jurisdiction to review indirectly whether the Security Council's resolutions were compatible with fundamental rights as protected by the Community legal order. Instead, the Court examined if higher rules of general international law falling within the scope of ius cogens had been observed.The Court founded its decision not to apply primary Community law to Council regulations on two presumptions: First, it assumed that the Community was bound by the obligations flowing from the Charter of the United Nations in the same way as were its Member States. Second, it held that UN law took primacy over Community law.The author disagrees with the assumptions of the CFI. By scrutinizing the legal impact of UN Security Council resolutions on the European Community she arrives at the conclusion that, on the one hand, the European Community is – from a Community point of view – bound by the relevant UN resolutions in the same way as are its Member States. On the other hand, however, from a national point of view, some of the Member States like Germany do not give UN law precedent over fundamental rights of their national legal orders. Having examined the Treaty of the European Community and based on the case law of the European Court of Justice the author finds that the European Community is – just as Germany – a legal community based on the rule of law. It must therefore ensure that the core contents of fundamental rights are always observed by the Community institutions. Thus, regulations putting into effect some resolutions of the UN Security Council have to be in conformity with the core contents of fundamental rights as protected by the Community legal order.As the ECJ has not checked if there had been enough evidence that the applicants were associated with the Taliban, Usama bin Laden or the Al-Qaeda network and as it has not controlled if the applicants' fundamental rights had been observed, the author finds that the Court has violated the right to give effective judicial review.