Challenging EU Sanctions

“EU sanctions” are known in EU law as “restrictive measures”, the purpose of which being “intended to bring a change of policy or activity by the targeted country, a part of that country, its government, entities or individuals. These sanctions can be efficiently challenged before European courts.

Restrictive measures are, according to the European External Action Service “a preventive and non-punitive instrument that should allow the EU to respond quickly to political developments or challenges”.
Such definition is not really in accordance with the recent practice, which show a clear intention to punish some personalities for having some links, supposedly close or not, with the Russian president.

EU’s competence to adopt the decision of imposing restrictive measures on third parties is the legacy of the practice of the Member States before the creation of the Union in 1993. Currently restrictive measures cover cases in which it has been decided to interrupt or reduce the Union’s economic relations with a third country (Article 215-1 of Treaty on the Functioning of the European Union, hereinafter TFEU), or to impose some constraints on individuals (Article 215-2 TFEU).

Formally, restrictive measures are adopted through a decision taken within the framework of the European Union’s Common Foreign and Security Policy (CFSP). They are then implemented within the framework of the Union according to its competences, which are intergovernmental in this field. Although unanimity is the rule, sanctions are subject to the discretionary power of the Council of the European Union.

Main measures applied to individuals are the freeze funds and financial assets, or to prohibit admission to the territory.

Speaking less legally, it is in the opinion of many lawyers – and even more, of course, of persons subject to sanctions – that all this legal framework looks like a criminal law without saying so openly, notably in view of circumventing the rules applicable to the latter. EU authorities will not lose their time to prove anything seriously. The burden of the proof is reversed, as the victim of such sanction will have to initiate some proceedings at General Court in Luxemburg. But it is worth the effort.

According to Article 263 of the TFEU, the action for annulment aims to have an act adopted by an institution and producing legal effects regarding third parties annulled. It may be brought within two months from the publication of the decision in the Official Journal of the EU.

This action is submitted thanks to a claim, which will launch proceedings according to the Rules of Procedure applicable in General Court. These rules state in particular very strict deadlines, the calculation of which being sometimes challenging. An appeal can be lodged to the Court of Justice of European Union.

Only certain categories of persons may bring such actions, and only certain actions are available against acts directly implementing restrictive measures within the Union. These are the Member States and the institutions of the Union, as well as the persons directly and individually affected by the contested restrictive measures. Third parties to the restrictive measures who are affected by them can only have access to the European Court indirectly.

The grounds for reviewing the legality of the act vary according to whether the institution that issued the act lacks competence, whether the act violates essential procedural requirements, whether the treaty or the rules governing its application have been violated, or whether the act is contrary to the law.

In any case, in addition to action for annulment, it is highly recommended to request a release separately, by written, to the Council.

Finally, it must be emphasized that in certain situations, an action for damages may be brought before the Court, when it appears that the “measures” were taken wrongfully. It enables individuals who have suffered damage to obtain compensation from of the institution that caused it.