on Individuals Legal Framework EU Sanctions on Individuals EU Treaty Provisions External Action and Restrictive Measures EU Council Sanctions Decisions and ID: 603105
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Slide1
EU Sanctions on IndividualsLegal FrameworkSlide2
EU
Sanctions
on
Individuals
EU
Treaty
Provisions
–
External
Action and
Restrictive
Measures
EU
Council
Sanctions
Decisions
and
Regulations
EU
Court
and Legal
Standards
on
Targeting
Individuals
EU
Sanctions
related
to
Ukraine
Conclusion
:
Feasibility
of
Additional
Asset
FreezesSlide3
EU Treaty
Provisions
EU External Actions
Require unanimous decisions in EU Council
Must be aimed at on of the EU’s foreign policy objectives as stated in the Treaty, for instance to
“consolidate and support democracy, the rule of law, human rights and the principles of international
law”
Sanctions measures targeted at individuals required to “include necessary provisions on legal safeguards”Slide4
EU Sanctions Decisions and Regulations
Decisions lay down general framework of the sanctions
Sanctions Regulations
contain detailed provisions
include lists of targeted individuals in
are directly applicable in all EU Member States – no need for national actions
a
re effective immediately (if so agreed by Council)
are automatically implemented by financial institutionsSlide5
EU Court and
Targeting
Individuals
EU Court has struck down hundreds of individual sanctions on procedural grounds
Key Requirements for targeting individuals relate to
General
designation
c
riteria
: Clear, precise and consistent with EU Treaties
Individual
statements of reason
: Individual, concrete and specific (“
challengeability
”)
Conformity of statements of reasons with designation criteria
Adequate
supporting evidence/information
Standard of proof – the “sanctions standard”?Slide6
EU Sanctions related to Ukraine
Initial EU Decision on sanctions in March 2014
Designation Criteria:
“persons
having been identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations in Ukraine, and natural or legal persons, entities or bodies associated with them, as listed in the
Annex”
Statements of Reason: ““[X is a ]
person
subject to
“criminal proceedings”
OR
“investigation”
in Ukraine to investigate crimes in connection with the embezzlement of Ukrainian State funds and their illegal transfer outside Ukraine.”Slide7
EU Sanctions related to Ukraine
Second EU Decision on sanctions in January 2015
“For
the purpose of this Decision, persons identified as responsible for the misappropriation of Ukrainian State funds include persons subject to investigation by the Ukrainian
authorities:
for
the misappropriation of Ukrainian public funds or assets, or being an accomplice thereto; or
for
the abuse of office as a public office-holder in order to procure an unjustified advantage for him- or herself or for a third party, and thereby causing a loss to Ukrainian public funds or assets, or being an accomplice thereto.Slide8
EU Sanctions related to Ukraine
Third EU Decision on sanctions in March 2015
Validity extended by a year for 14 persons but only for three months for 4 persons
Fourth EU
Decision on sanctions in
June 2015
Validity extended by a
nine months for 2 persons, for four months for 1 person
One person removed from the list
Statements of reasons amended
to include
“[x is a ] person
associated with a designated
person“
Fifth EU
Decision on sanctions in
October 2015
Validity extended by
five months for 1 person, statement of reason amended
Sixth
EU Decision on sanctions in March
2016
Validity extended by a year for 16 persons, one person removed from the listSlide9
EU Sanctions related to Ukraine
Portnov
v Council, 26 October
2015
Listing based solely on
letter stating that “‘[t]he Ukrainian law enforcement authorities have initiated a number of criminal proceedings to investigate criminal acts committed by former senior
officials”, including
Portnov
EU Court:: “[
the asset freeze
] is not
adopted in response to a request from the authorities of the non-member country concerned, but
constitutes an autonomous measure adopted in pursuit of the Common Foreign and Security Policy objectives of the European
Union
”
Council had
inadequate information and evidence
to determine that
Portnov
was “responsible for misappropriation of funds” or even that he was “
subject
of genuine ‘criminal proceedings’, or even a mere preliminary
inquiry”
-> Listing annulledSlide10
EU Sanctions related to Ukraine
Azarov
v Council
,
28 January 2016
EU Court: “[the Council cannot
adopt restrictive measures against
[an individual] without
knowing the acts of misappropriation of public funds which the Ukrainian authorities specifically alleged against
him”.”
This is needed in order for the Council to establish
that
the facts can be categorized as
misappropriation
of public
funds (which is the
designation criteria
)
and
undermining the rule of law in
Ukraine
(since the support for rule of law was
the foreign policy objective
of the measures)
-> Listing annulledSlide11
EU Sanctions related to Ukraine
Klyuyev
v Council
,
15 September 2016
New documents from Ukrainian authorities describing specific acts and ongoing investigation was enough to satisfy the Court that there was
adequate information and evidence
Council has
comptetence
under CFSP to freeze
assests
of third country national suspected of misappropriation
if and only if the acts in question are significant enough to undermine rule of law in Ukraine
In this case, target was a high official in former Government, and taking together with other similar officials their acts were enough to undermine rule of law
-> Listing
maintainedSlide12
Conclusion: Feasibility of Additional Asset Freezes
Legal Requirements
Documentation
provided to EU detailing alleged conduct and confirming an ongoing investigation
The alleged events, taken in their context, must be
serious enough
to amount to undermining the rule of law in Ukraine
The targeted person must have held a significant
position of power
in Government
Proposed by Member State or Commission, discussed in working group(s), decided by unanimous EU Counsel
Policy Considerations
Requires unanimous consent in Council
Must be serious enough to be relevant to 28 Foreign Ministers
Political climate, lessons learnt and “sanctions appetite”
Is the issue of foreign policy or police
co-operation?
What is the most effective tool in a
given case?Slide13
Aleksi.Pursiainen@SolidPlan.fi