The legality of EU sanctions Contents

Chapter 2: EU sanctions policy and procedure

Overview

5.Sanctions—also referred to as restrictive measures—against ‘third’ (non-EU) countries, and individuals or companies in third countries, are an essential foreign policy tool, which the EU uses to pursue objectives under the Common Foreign and Security Policy (CFSP).

6.EU sanctions come in two forms. The first is sanctions that the EU Member States are obliged to implement in EU law by virtue of Resolutions of the United Nations (UN) Security Council under Chapter VII of the UN Charter. The second is autonomous sanctions, which the EU adopts in the absence of, or in addition to, UN sanctions.

7.Sanctions are intended to bring about a change in policy or activity in the target country, region, government, companies or individuals. The measures should target the policies or actions that have prompted the decision to impose sanctions, and those identified as responsible for those policies or actions. There should, therefore, be a link between the target of the sanction and the overall foreign policy objective.

8.Under EU law, sanctions should respect human rights and fundamental freedoms, in particular due process and the right to an effective remedy, all of which are safeguarded by the EU Charter of Fundamental Rights. The EU Charter legally binds the EU institutions and Member States when they implement EU sanctions.1

9.The crises in the Middle East, North Africa and Ukraine have led to a marked increase in the use of sanctions by the EU. There are now EU sanctions regimes against approximately 35 countries, regimes and terrorist organisations.2

Procedure for listing

10.The Council imposes EU sanctions through a CFSP Council Decision adopted by the Member States by unanimity. Certain types of sanctions, such as arms embargoes and travel bans, are implemented directly by Member States, and such measures require only a Decision by the Council, which is directly binding on Member States. By contrast, economic measures such as asset freezes and export bans affect wider EU legal principles on free movement, and require additional implementing legislation in the form of a Council Regulation, which is directly binding on individuals and companies in the EU. The Regulation sets out the precise scope of the measures decided upon by the Council and the means of their implementation.

Types of sanction

Arms embargo

11.An arms embargo normally covers the sale, supply and transport of goods included in the EU’s ‘Common Military List’.3 Related technical and financial assistance is normally also included in the ban. In addition, the export of equipment used for internal repression, and dual-use goods (those that can be used for both civil and military purposes) may be prohibited.

Asset freeze

12.An asset freeze concerns funds and economic resources owned or controlled by targeted individuals or companies. It means that funds, such as cash, cheques, bank deposits, stocks, and shares may not be accessed, moved or sold. Neither can other tangible or intangible assets be sold or rented, including real estate. An asset freeze also includes a ban on providing resources to the targeted individuals or companies. This means that EU citizens and companies must not make payments or supply goods and other assets to them. In effect, business transactions with targeted individuals or companies cannot be carried out. In certain cases, national authorities can permit derogations from the asset freeze under specific exemptions, for instance to cover basic needs (such as foodstuffs, rent, medicines or taxes) or reasonable legal fees.

Visa or travel ban

13.Individuals targeted by a travel ban will be denied entry to the EU at its external borders. If visas are required for entering the EU, they will not be granted to people subject to such restrictions on admission. EU sanctions do not, however, oblige a Member State to refuse entry to its own nationals.

Scope

14.By their very nature, EU sanctions are designed to have political effect in third countries. Nevertheless, they only apply within the jurisdiction of the EU, which is to say:

15.The five EU Candidate Countries4 are encouraged to align themselves with EU sanctions.

Legal remedies

16.The Council notifies individuals and companies listed under an EU sanction of the measures taken against them, once they have been taken. At the same time, it brings the available legal remedies to their attention: they can ask the Council to reconsider its decision, by providing observations on the listing; or they can challenge the measures before the General Court of the EU (the General Court)5 within two months and 10 days of being notified. If the General Court ‘annuls’ (strikes down) the sanction, the judgment only comes into effect two months and 10 days after the date of delivery. Within this time, the Council can, and often does, re-list the same individual or company, but on amended statements of reasons.


1 Article 51(1) of the EU Charter of Fundamental Rights, OJ C 202 (7 June 2016)

2 European Commission, Restrictive measures (sanctions) in force, 11 October 2016: https://eeas.europa.eu/sites/eeas/files/restrictive_measures-2016–10-11-clean.pdf [accessed 13 January 2017]

3 Common Military List of the European Union adopted by the Council on 9 February 2015, OJ C 129 (21 April 2015)

4 Albania, the former Yugoslav Republic of Macedonia, Montenegro, Serbia and Turkey.

5 The General Court is the first-instance EU court, which hears all applications to annul sanctions listings. Appeals from the General Court are heard by the EU’s apex court, the Court of Justice of the EU.




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