European sanctions (restrictive measures)
Restrictive measures or ‘sanctions’ are an essential tool of the EU’s Common Foreign and Security Policy (CFSP). They are used by the EU as part of an integrated and comprehensive policy approach, involving political dialogue, complementary efforts, and the use of other instruments at its disposal.
Key objectives when adopting sanctions
– safeguarding EU’s values, fundamental interests, and security
– preserving peace
– consolidating and supporting democracy, the rule of law, human rights and the principles of international law
– preventing conflicts and strengthening international security
Sanctions seek to change the policy or conduct of those targeted, with a view to promoting the objectives of the CFSP. They can target:
– governments of non-EU countries because of their policies
– entities (companies) providing the means to conduct the targeted policies
– groups or organizations such as terrorist groups
– individuals supporting the targeted policies, involved in terrorist activities, etc.
It should be noted that the implementation of such sanctions must always comply with EU law, both at listing and at periodic review.
The Court of Justice of the European Union has already recalled that “The European Union is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EU and the FEU Treaties, the latter having established a complete system of legal remedies and procedures designed to enable the Court of Justice of the European Union to review the legality of acts of the institutions ” and that “generally, the EU judicature must, in accordance with the powers conferred on it by the FEU Treaty, ensure the review, in principle the full review, of the lawfulness of all EU acts in the light of the fundamental rights forming an integral part of the EU legal order.”
In the field of European sanctions, the Court has held that “The effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights requires in particular that the EU judicature is to ensure that the decision by which restrictive measures were adopted or maintained, which affects the person or entity concerned individually, is taken on a sufficiently solid factual basis. That entails verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated”
If a sanctioned person were to lodge an application for annulment, and the Council of the EU fails to establish that the reasons relied on against the person concerned are well founded, the Court shall annul the decision to include or maintain the person concerned on the list of sanctioned persons.
In addition, the person who has been wrongfully sanctioned may claim compensation for damages, provided that the conditions for engaging the extra-contractual liability of the Union are satisfied. (To see the conditions, refer to our article here)
In this regard, we pioneered claims for such compensation for one of our clients whose success before the Court of Justice of the European Union (Grand Chamber) have set the benchmark for compensation in EU sanction cases (C-45/15 P, Safa Nicu Sepahan/Council)