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Comment on Kokott/Sobotta “The Kadi Case – Constitutional Core Values and International Law – Finding the Balance?”

Published on January 14, 2013        Author: 

Nele Yang is a PhD candidate and research fellow at the Max Planck Institute for Comparative and International Law in Heidelberg.

The title of Kokott and Sobotta’s article (available free here) seems to suggest that this is another analysis of whether the 2008 Kadi decision succeeds in balancing core EU constitutional values and the effective implementation of UN anti-terrorist sanctions. Innovatively, however, the authors choose not to venture down this well-trodden path. Instead they ask what can be drawn from the Kadi judgment and the developments it has triggered in order to reduce conflict between the EU legal order and the UN Al-Qaida sanctions regime in general.

Solange – the Importance of Conditions

Kokott and Sobotta assert that the ECJ’s 2008 Kadi decision contains an approach similar to the German Federal Constitutional Court’s famous Solange. The question whether the 2008 Kadi judgment can be read as spelling out a Solange approach or at least leaving this approach open as one alternative for future action is less controversial than the article makes it out to be. Considering how much of the Kadi debate has been conducted around this issue, it is to be regretted that Kokott and Sobotta do not clarify that there is no “either/or” relationship between an approach à la Solange and a dualist approach. Moreover, Solange does not necessarily imply an attenuated form of dualism. To the contrary, depending on the conditions contained in the relative clause starting with “as long as”, the stance that it is this legal order which determines under which circumstances the other legal order will have any bearing on it might even be intensified. This is why we distinguish between Solange II and Solange I. Thus, “solange” in itself only expresses that interaction is made conditional. It does not say anything about the conditions, but the conditions are the crucial part. So the question is not so much whether a Solange approach can be drawn from the 2008 judgment but rather under which conditions the Court might in future cases practice deference.

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