We are grateful to EJIL that our article in the latest issue of the journal has been chosen for discussion in this forum. The commentaries by Yang and Tzanakopoulos help us to put our position into perspective and frame it more precisely.
Tzanakopoulos develops the Solange argument for judicial control in multilevel systems in the way that implicitly underlies our understanding in the first part of our contribution. His argument is almost binary in its nature. Either the standards of judicial control on the other level are adequate or our level will control measures from the other level.
However, Yang provides a more nuanced image: Solange or not Solange – that is not the question. The conditions of a Solange rule are what is important. And we would add that also the consequences of the conditions are of interest.
In this light, one reading of our contribution could be that we propose a rule providing that as long as the UN Security Council provides for an independent and timely review of complaints against listing decisions by the Ombudsperson, the EU Courts should require plaintiffs to address this review mechanism before accepting an action. This Solange rule would differ from the Solange rule discussed by Tzanakopoulos not only with regard to its conditions, but also with regard to its consequences.
Obviously, our rule is only a proposal. It’s up to the ECJ (or perhaps the legislator) to develop a mechanism along those lines. And it would be misleading to give the impression that the ECJ would take up such a proposal in abstracto. Any such decision would always depend on the circumstances of the case that is on the quality of review at UN level in this specific instance. This is how Kadi I should be interpreted on this point: The specific case did not require the Court to elaborate a specific Solange test as the review system at UN level was clearly insufficient.
Although our proposal would not result in a classical Solange rule completely excluding review on the EU level, it still offers major advantages. Most importantly, it could help to relieve targeted individuals, but, on a more general level, it could reduce the tension within the system of targeted sanctions. In this regard, the events in the limited period since our article had been submitted illustrate that this field undergoes significant developments.
First of all, the work of the Ombudsperson had important practical effects for the handling of individual sanctions cases by the EU Courts. Just before the hearing of the appeal in his second action against his EU listing, Mr Kadi was withdrawn from the UN list and consequently from the EU list. Therefore, the Court of Justice will have to decide whether it is still necessary to address the substance of the case. In a similar situation, the General Court has already declared that there was no longer any need to adjudicate on the application (Case Abdulrahim v. Council, T‑127/09). The appeal against this decision has been assigned to the grand chamber of the Court and an opinion by Advocate General Bot is due for 22 January 2013 (Case C-239/12 P), a week before his opinion on Kadi II. Irrespective of the outcome of these cases, it could come to pass that with respect to targeted sanctions all Solange discussions will become hypothetical. If review by the ombudsperson is more attractive to listed persons and she weeds out all the borderline cases, there might not remain anybody to apply to the EU courts.
In addition, attention should be drawn to the appeal in the Stichting al aqsa case referred to in our article and by Yang (Cases C‑539/10 P and C‑550/10 P). On 15 November 2012, the Court granted the appeal of the Netherlands and ruled against Stichting al aqsa. The Court did not consider it problematic that there was no longer a national decision in the Netherlands that Stichting al-aqsa could contest. This weakens our argument that in sanctions cases remedies at the origin of sanctions should enjoy precedence. However, it is not excluded that such remedies enjoy precedence where they exist.