On 11 June 2009, almost nine months after the landmark decision of the European Court of Justice in Kadi,1 the Court of First Instance (now: General Court) delivered its judgment in Othman. In a rather short decision, the CFI held that the contested Regulation which subjected the applicant to the freezing of his funds should be annulled on the grounds that it breached his fundamental rights of defence, of effective judicial protection and of property. At first glance the ruling does not impress. It does not deal with the complexities of the world system of governance2 and does not purport to give an answer to the relationship between European Union and international law. Nevertheless, a more careful reading reveals that the CFI in the present case is not merely bringing its case law concerning economic sanctions against individuals in conformity with the ECJ’s judgment in Kadi. It seems that it is also moving forwards, opening up new paths and raising new questions in the debate on the protection by the EU courts of the fundamental rights of targeted individuals in the ongoing fight against terrorism. The CFI’s judgment in Othman raises important issues concerning the relationship between the rights to property, dignity and private life. The present note seeks to analyse this ruling in the light of the existing case law of the EU judiciary regarding individuals and entities targeted by smart sanctions. This annotation reads the present case as a development of the above-mentioned jurisprudence, where the CFI reaches its culmination with respect to decisions concerning economic sanctions. However, the Court’s reasoning will be criticized, because it raises important questions and then leaves them unanswered. It will be submitted that in its fundamental rights analysis, the CFI paves an entirely new way, but then does not have the courage to take the first step in this direction. In this respect, it seems that the Court misses the opportunity to advance the EU courts’ jurisprudence on human rights and the fight against terrorism, by exploring new areas in the field.
|Common Market Law Review
|Published - 2010