Since the 1990s, various types of restrictive measures or other sanctions have been taken by the EU against third States as well as natural or legal persons and groups or non-State entities. It is argued that such sanctions should not be seen as value imperialism nor as futile gesture politics, as the Union is taking them to pursue not only its values but also its inte­rests and as sanctions can at least in certain situations have a real effect on the target and influence its behavior. The EU sanctions system is based on a fairly intense judicial scrutiny, with such leading cases as Kadi I and Kadi II. The General Court has been faced with around 50 to 100 new cases each year and some of them come on appeal before the Court of Justice. It is argued that this judicial scrutiny does not endanger the EU sanctions system but should instead be seen as enhancing its legitimacy.

SOMMARIO:

I. Introduction. - II. Restrictive measures - III. Value imperialism? - IV. Futile gesture politics? - V. Judicial controls: a) the EU system; b) Kadi I; c) Kadi II and ZZ; d) other cases. - NOTE

I. Introduction.

Especially since the 1990s, the development of an EU external relations policy has been matched by a gradual movement from restrictive measures and other sanctions [1] undertaken by individual Member States towards a veritable EU sanctions policy [2]. Sanctions against third States and other parties are normally taken by the EU, acting, as it were, on behalf of the Union and its Mem­ber States. There are two main reasons for this state of affairs: First, sanctions are in general much more effective if they are taken in common, instead of having 28 or 29 (if the Union is counted as well) different solutions adopted at national level. Second, sanctions in most cases involve measures of an economic nature and if taken separately, in a dispersed manner, by individual Member States could run counter to the EU common commercial policy and internal market rules [3]. At first, EU sanctions were directed against States and then in most cases in view of alleged violations of human rights, democratic principles and the rule of law. The possibility of such sanctions was and continues to be provided for in trade and cooperation agreements with third States, which often contain a so-called human rights clause coupled with a clause giving the parties the right to suspend the operation of the agreement notably in the case of non-respect for the human rights clause [4]. After what is commonly called ‘9/11’, the focus shifted somewhat to the fight against terrorism and the Al Qaida network in particular, with sanctions which involved, inter alia, the freezing of the funds of alleged terrorists [5]. Today, sanctions against alleged terrorists continue to play their part but there has also been a fairly strong emphasis on economic and other sanctions undertaken against States such as Byelorussia, Iran, Syria and, more recently, Russia. As the use of the human rights clause as a stick rather than a carrot demonstrates, sanctions may take the form of suspending the operation of an existing agreement [6]. With respect to ex-Yugoslavia, this was done even without the existence of a human rights or other similar clause in the agreements suspen­ded [7]. Under internal Union law, the suspension of the operation of international agreements concluded by the Union should be based on art. 218(9) of the Treaty on the Functioning of the European Union (hereinafter TFEU), according to which the Council, [continua ..]

II. Restrictive measures

The latter remark is also relevant for what has become the most important instrument of EU sanctions policies, the adoption of “restrictive mea­sures” under art. 215 TFEU, on the basis of a corresponding decision adopted under the Common Foreign and Security Policy (hereinafter CFSP). This possibility, which was, in a somewhat more restricted form, envisaged already since the Treaty of Maastricht (1992) [11], implies, according to art. 215(1), a Council CFSP decision providing for «the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries», followed by the adoption, also by the Council, of a legally binding act, normally in the form of a regulation. The CFSP decision is as a rule adopted unanimously whilst the regulation adopted under Art. 215(1) TFEU only requires a qualified majority in the Council. Art. 215(2), unlike the provisions preceding the Treaty of Lisbon (2007), makes it clear that such restrictive measures may also be taken against «natural or legal persons and groups or non-State entities» [12]. The restrictive measures may, to use the language of general international law, constitute countermeasures (reprisals) or retorsions, as the case may be. There seems to be some overlap between the scope of application of restrictive measures, under art. 215 TFEU, and other sanctions, such as the suspension of the operation of agreements under art. 218(9) TFEU. The following discussion will be limited to the “restrictive measures” envisaged in art. 215 TFEU. They are the ones that have attracted most attention lately and their consequences for both third States and businesses are in many cases more important than, say, the mere suspension of the operation of an agreement, especially if it is a question of partial suspension of limited scope. III. The title of this contribution also asks if sanctions can be seen as “value imperialism” or perhaps as “futile gestures” without any real impact. A political scientist, economist, politician or diplomat would probably be more compe­tent than the present author to answer these questions. The following remarks are limited to a few reflections presented with the eye of a lawyer and a judge. As to “value imperialism” [13], the EU should perhaps not be too ashamed of insisting that values which, in fact, have [continua ..]

III. Value imperialism?

But what about the effectiveness of such sanctions? Are they just, as is queried in the title of this contribution, manifestations of futile gestures politics? There is of course an abundance of both academic and non-academic li­terature and discussion on the effectiveness of sanctions in international relations [16]. What follows are only some modest comments, partly inspired by the experience of the author as a judge who has had to deal with a number of legal challenges to restrictive measures brought before the European Court of Ju­stice (hereinafter ECJ). With this caveat, it should be said that the idea, expressed by some, accor­ding to which sanctions are as a rule at most symbolic, or mere “gestures”, and do not have any real effect at all for the target country or non-state entity, runs counter to common sense and is not backed up by actual practice. If EU restrictive measures do not have any real impact, it is hard to understand why the targeted countries (take Iran as the clearest example) take such efforts to get them removed and sometimes also resort to counter-measures. Nor would private or semi-private undertakings fight so many, and potentially expensive, legal battles to have the restrictive measures annulled with respect to them if they perceived that the measures do not affect them in any appreciable way. This is not to say that sanctions may not have negative side-effects on the one resorting to them, or that sanctions could not in some instances be of sym­bolic nature only. Much will depend on the circumstances, including obviously the scope, content and duration of sanctions as well as the situation in which the target finds itself. Restrictive measures with a broad scope will almost inevitably affect the economy of the target and may in many cases also have an impact on its behavior. In addition, restrictive measures may in various ways affect the populations of targeted countries in a way which may raise human rights concerns concerning rights such as the right to food or to health care. That is why the UN Human Rights Council has established a Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights [17].

IV. Futile gesture politics?

a) As to the question of legal, and above all judicial controls, of EU sanctions [18], the relevance of values and principles rather than pure interests and Realpolitik is more readily to be seen. Actions for annulment of EU Council decisions on restrictive measures can be brought before the General Court of the Union (the former Court of First Instance), and on appeal against its decisions, before the ECJ. Not only does art. 215(3) TFEU state that acts referred to in that article «shall include necessary provisions on legal safeguards» but art. 24(1) TEU and art. 275(2) provide that the exclusion of the jurisdiction of the Union Courts with respect to CFSP acts does not apply to actions of annulment against decisions, to cite art. 275(2), «providing for restrictive measu­res against natural or legal persons adopted by the Council» on the basis of the CFSP part of the TEU [19]. The provision does not mention actions against regulations to implement CFSP decisions as these regulations are not CFSP acts as such and as it is clear that regulations and other legal acts adopted under the TFEU and not the CFSP part of the TEU may be challenged before the Union Courts (see art. 19 TEU and 256 and 263 TFEU), provided that the conditions of art. 263 TFEU are met [20]. The legality of such regulations may also be challenged through the pre­liminary rulings procedure whereas the question as to whether CFSP decisions, too, may be challenged through that procedure is actually pending before the ECJ [21]. That the possibility of challenging restrictive measures has become far from a dead letter is borne out by statistics. Whilst in 2006 five actions for the annulment of such acts were brought before the General Court, the more recent figures are as follows: 93 new such cases in 2011, 59 in 2012, 41 in 2013, 69 in 2014 and finally 55 in 2015 [22]. Much less cases are brought on appeal to the ECJ. In 2015, for instance, the Court decided seven such cases. Generally speaking, the cases brought before the ECJ usually raise questions of principle or particularly contentious questions. According to some, courts of law should not be involved at all, or not very much, in issues regarding restrictive measures and other sanctions, which should be reserved for politicians and practitioners. Some might even, as the title of my talk [continua ..]

V. Judicial controls: a) the EU system; b) Kadi I; c) Kadi II and ZZ; d) other cases.

By way of conclusion it can be stated that EU sanctions decisions are subject to a full and effective judicial review. Whilst the political institutions have broad discretion in defining the general criteria which are to determine the scope of targeted persons, entities and activities, the scrutiny of the application of these criteria in concreto is more intensive. It is true that the case law has caused some consternation and concern among the Council and the Commission and some Member States fearing that this judicial control would undermine the efficiency of EU sanctions. In my view, however, experience demonstrates that the Union Courts are not unaware of the security and political aspects involved, nor that the EU sanctions regime has come to a halt or been otherwise undermined. Some high-profile cases where the restrictive measures have been annulled (such as Kadi I and Kadi II) seem to have contributed to a gradual improvement in the designation of restrictive measures and thus to less sanctions decisions being struck down. It is to be hoped that the new mechanisms for the handling of confidential information by the Union Courts will enable then Council and the MemberStates to submit information which they have hitherto deemed to be too sensitive to show even to judges [48]. It is also interesting to note in this context that the Luxembourg judgments have been cited approvingly by some national courts in and outside the EU and by the European Court of Human Rights [49]. They have also provoked so­me improvements in the UN sanctions system (including the creation of a sanc­tions ombudsman) [50]. These improvements have not, on the other hand, led to the creation, at UN level, of anything close to a system of judicial control and if this state of affairs is to continue, judicial control will have to be centred essentially on the Union Courts. The judicial review exercised by the Union Courts is certainly based on fundamental values (the rule of law) and principles (effective judicial protection, art. 47 of the EU Charter of Fundamental Rights), but, to come back to the title of this contribution, it is not a question of value “imperialism”, nor can the review exercised be branded an “extravaganza”. Judicial review contri­butes to keeping sanctions decisions especially against private persons and com­panies within reasonable limits, in other words [continua ..]

NOTE