EU Law, International Law and Economic Sanctions against Terrorism: The Judiciary in Distress? Research Papers in Law, 3/2008

From the Introduction. This article seeks to examine the relationship between European Union law, international law, and the protection of fundamental rights in the light of recent case law of the European Court of Justice (ECJ) and the Court of First Instance (CFI) relating to economic sanctions against individuals. On 3 September 2008, the ECJ delivered its long-awaited judgment in Kadi and Al Barakaat on appeal from the CFI.3 In its judgment under appeal,4 the CFI had held that the European Community (EC) is competent to adopt regulations imposing economic sanctions against private organisations in pursuance of UN Security Council (UNSC) Resolutions seeking to combat terrorism; that although the EC is not bound directly by the UN Charter, it is bound pursuant to the EC Treaty to respect international law and give effect to UNSC; and that the CFI has jurisdiction to examine the compatibility of EC regulations implementing UNSC resolutions with fundamental rights not as protected by the EC but as protected by jus cogens. On appeal, following the Opinion of Maduro AG, the ECJ rejected the CFI’s approach. It held that UNSC resolutions are binding only in international law. It subjected the contested regulations to full review under EC human rights standards and found them in breach of the right to a hearing, the right to judicial protection and the right to property. Kadi and Al Barakaat is the most important judgment ever delivered by the ECJ on the relationship between EC and international law and one of its most important judgments on fundamental rights. It is imbued by constitutional confidence, commitment to the rule of law but also some scepticism towards international law. In the meantime, the CFI has delivered a number of other judgments on anti-terrorist sanctions assessing the limits of the “emergency constitution” at European level. The purpose of this paper is to examine the above case law and explore the dilemmas and tensions facing the EU judiciary in seeking to define and protect the EU’s distinct constitutional space. It is divided as follows. It first looks at the judgment in Kadi. After a short presentation of the factual and legal background, it explores the question whether the EU has competence to adopt smart sanctions. It then examines whether the EU is bound by resolutions of the Security Council, whether the ECJ has jurisdiction to review Community measures implementing such resolutions and the applicable standard of judicial scrutiny. It analyses the contrasting views of the CFI, the Advocate General, and the ECJ taking account also of the case law of the European Court of Human Rights (ECtHR). Further, it explores the consequences of annulling the contested regulation. It then turns to discussing CFI case law in relation to sanctions lists drawn up not by the UN Security Council but by the EC. The paper concludes by welcoming the judgment of the ECJ. Whilst its reasoning on the issue of Community competence is questionable, once such competence is established, it is difficult to support the abrogation of Community standards for the protection of fundamental rights. Such standards should ensure procedural due process whilst recognising the importance of public security.

The Triangular Relationship between Fundamental Rights, Democracy and the Rule of Law in the EU: Towards an EU Copenhagen Mechanism. CEPS Paperbacks. November 2013

This study examines the protection of fundamental rights, democracy and rule of law in the European Union, and the challenges that arise in reflecting on ways to strengthen EU competences in these contested terrains. It provides a ‘state of play’ and critical account of EU-level policy and legal mechanisms assessing the relationship between rule of law, democracy and fundamental rights in the member states of the Union. The cross-cutting challenges affecting their uses, effective implementation and practical operability constitute a central point of the analysis. The study argues that the relationship between rule of law, democracy and fundamental rights is co-constitutive. Any future rule of law-related policy discussion in the EU should start from an understanding of the triangular relationship between these dimensions from the perspective of ‘democratic rule of law with fundamental rights’, i.e. the legally based rule of a democratic state that delivers fundamental rights. The three criteria are inherently and indivisibly interconnected, and interdependent on each of the others, and they cannot be separated without inflicting profound damage to the whole and changing its essential shape and configuration.

Rebalancing the EU-Russia-Ukraine gas relationship. Bruegel Policy Contribution ISSUE 2014/15, DECEMBER 2014

The October 2014 agreement on gas supplies between Russia, Ukraine and the European Union did not resolve the Ukraine-Russia conflict over gas. The differences between parties in terms of objectives, growing mistrust and legacy issues make it unlikely that a long-term stable arrangement will be achieved without further escalation. Without EU pressure and support, Ukraine is likely to enter a new unfavourable gas arrangement with Russia, which could have repercussions beyond the energy sector. Key highlights: To reduce prices and increase the security of imports, the EU as a bloc should redefine its gas relationship with Russia and Ukraine and overcome the diverging interests of EU member states on second-order issues. Implementation of a joint strategy rests on enforcement of EU competition and gas market rules, a strengthened role for the Energy Community and the establishment of a market-based instrument for supply security. For Ukraine, the EU should serve as an anchor for comprehensive gas sector reform. Contingent on Ukraine’s reform efforts, EU financial and technical assistance, the enabling of reverse flows from the EU to Ukraine and pressure on Gazprom, should eventually enable Ukraine to obtain a sustainable gas-supply contract with Russia. This should make a sustainable and mutually beneficial Russia-Ukraine-EU gas relationship possible. However, during the transition, the EU should be prepared for possible frictions.

European Policy Uses of International Comparisons of Academic Achievement. ACES Working Papers, 2012

International large-scale assessments (ILSAs) and the resulting ranking of countries in key academic subjects have become increasingly significant in the development of global performance indicators and national level reforms in education. As one of the largest international surveys, the Programme for International Student Assessment (PISA) has had a considerable impact on the world of international comparisons of education. Based on the results of these assessments, claims are often made about the relative success or failure of education systems, and in some cases, such as Germany or Japan, ILSAs have sparked national level reforms (Ertl, 2006; Takayama, 2007, 2009). In this paper, I offer an analysis of how PISA is increasingly used as a key reference both for a regional2 entity like the European Union (EU) and for national level performance targets in the example of Spain (Breakspear, 2012). Specifically, the paper examines the growth of OECD and EU initiatives in defining quality education, and the use of both EU benchmarks and PISA in defining the education indicators used in Spain to measure and set goals for developing quality education. By doing so, this paper points to the role of the OECD and the EU in national education systems. It therefore adds to a body of literature pointing to the complex relationship between international, regional, and national education policy spaces (cf. Dale & Robertson, 2002; Lawn & Grek, 2012; Rizvi & Lingard, 2009).

The ICC and its Deteriorating Relationship with Africa in Light of the Kenya Cases: What Should the EU Position be? IES Policy Brief Issue 2013/09 • November 2013

Summary. The African Union (AU), a union consisting of 54 African States, held an Extraordinary Summit on 11-12 October 2013, to discuss its relationship with the International Criminal Court (ICC or the Court). The meeting took place just weeks before the trial of Kenya’s President Uhuru Kenyatta is scheduled to begin, and was clearly intended to voice discontent and put on hold the ongoing ICC proceedings against Kenyatta as well as his deputy, Vice-President William Ruto. Before the Summit, there were even widespread rumors that the Assembly of the AU would call for a mass withdrawal of African States Parties from the ICC Statute. Eventually, the Assembly did not go that far and took two important, but less controversial decisions. It called for the granting of immunities to Heads of States from prosecutions by international criminal tribunals and requested a deferral of the ICC cases against Kenyatta and Ruto through a resolution adopted by the UN Security Council (UNSC). After providing a background to the Kenya cases, this policy brief aims to evaluate what the position of the EU and its Member States as outspoken supporters of the ICC and the fight against impunity should be, especially given the fact that France and the UK, as permanent UNSC members, could block a UNSC deferral at any time.

Social Content of the International Sphere: Symbols and Meaning in Franco-German Relations, CES Germany & Europe Working Papers, No. 02.2, 2002

“The Franco-German friendship is rich in memories and gestures that are at once important and symbolic, and that characterize the exceptional nature of the relationship between our two countries,” reflects former French economics minister and European Commission President Jacques Delors. Such symbolic acts and joint memories are not primarily about cooperation in specific instances. Rather, more generally, they denote what it means to act together. They lend significance to a relationship; they signify what is “at stake,” or what it is “all about.” They are about a deeper and more general social purpose underlying specific instances of cooperation. They are about the value and intrinsic importance that social relations incorporate. Symbols contribute to the institutionalization of social meaning and social purpose in dealing with one another. In this paper I clarify the concept of “predominantly symbolic acts and practices among states,” systematically explore such acts for the bilateral Franco-German relationship between the late 1950s and the mid-1990s, and scrutinize the specific meaning and effects that these practices have helped to generate and perpetuate.

Ties That Bind? The Parapublic Underpinnings of Franco-German Relations as Construction of International Value. CES Germany & Europe Working Papers, No. 02.4, 2002

Beneath the relations among states, and distinct from the exchanges of an autonomous regional or global civil society, there is another set of international practices which is neither public nor private but parapublic. The Franco-German parapublic underpinnings consist of publicly funded youth and educational exchanges, some two thousand city and regional partnerships, a host of institutes and associations concerned with Franco-German matters, and various other parapublic elements. This institutional reality provides resources, socializes the participants of its programs, and generates social meaning. Simultaneously, parapublic activity faces severe limits. In this paper I clarify the concept of “parapublic underpinnings” of international relations and flesh out their characteristics for the relationship between France and Germany. I then evaluate the effects and limits of this type of activity, and relate this paper’s findings and arguments to recent research on transnationalism, Europeanization, and denationalization.