Volume 44 (2007) / Issue 3
In recent academic literature, EC cases such as “Yusuf”, “Kadi”, “Gestorias Pro Amnistía” and others have received a great deal of attention and commentary. The tenor of the scholarly debate has been on weighing the conflicting aims of protecting individual rights versus the effectiveness of the fight against international terrorism. These cases, however, also raise questions regarding the formulation and distribution of competences and responsibilities in the evolving architecture of European governance. It is argued here that two fundamentally different models could be used to conceptualize the relationship between the UN, the EU and the nation states with regard to judicial control of UN sanction measures: First, one could use the model of the (in principle) closed entity, that applies its own fundamental rights standards to the “intruding” law of a different entity and grants the power to invalidate its norms only to its own institutions. Second, one could conceive of this relationship also as an emerging network of actors in mutual cooperation, in which no recourse to the concept of closedness is made and in which actions are measured on the principles and standards of the legal order of the acting institution. The article discusses the implications of a shift from the first to the second model suggested by the CFI in “Yusuf” and “Kadi” and by AG Mengozzi in “Gestorias Pro Amnistía”.
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