Has the EU lost the ability to enact sanctions?

The EU's highest court has been busy unravelling the foreign agenda of the Union – by consistently overturning sanctions enacted by Brussels.

In its most recent ruling on 16 October, the court struck down anti-terrorism sanctions imposed on the Tamil Tigers in 2006, citing that the council’s decision to place the group on a list of terrorist organisations had been based on "imputations derived from the press and the Internet".

Last month, the same Luxembourg judges deemed that the European Union’s freeze on the assets of the Iranian central bank was based on reasons that “are so vague and lacking in detail that the only possible response was in the form of a general denial” since the arguments “do not comply with the requirements of the case-law”.

That case-law spans a dozen cases, where the court consistently overturned sanctions – against the Iranian nuclear programme, the Syrian leadership or al-Qaeda-associated individuals – claiming that the rationale for blacklisting someone is generally sparse and based on secret, non-transparent information.

With the EU losing case after case, member states have become jittery over fears that their embargo on Russian companies and individuals might go the same way. Their concern might be justified.

Rosneft, Sberbank and Arkady Rotenberg, a Russian businessman, have recently filed separate cases against the Council of the EU for slapping them with sanctions over their alleged role in destabilising Ukraine.

Their complaints are familiar. Rotenberg, for example, says that the charges against him are “vague" and that the council relied heavily on materials holding “demonstrable errors of fact”.

European secrecy in imposing sanctions makes it impossible to determine if the persons accused are indeed guilty of the crimes they are charged with. Barring compelling evidence, parties should be innocent until proven guilty.

As things stand now, the Council does not disclose, neither to the court nor even to the accused, the documents or other sensitive information it uses when placing individuals or companies on the sanctions list, citing concerns of “national security”.

Since the parties involved are usually left with a vaguely worded explanation of reasons, many have taken their battles to Luxembourg, claiming the decisions are falling short of the Union’s own human rights framework. The EU court agreed.

In its seminal 2008 Kadi judgment, involving an individual (Yassin Kadi) placed on the EU’s sanctions list at the request of the UN Security Council over his alleged involvement in financing al Qaeda, the judges asserted that respecting human rights should be more important than protecting international security.

The court then made a powerful statement arguing that ensuring a high standard of human rights demands both access to the evidence used by the council and providing the right of the person targeted to directly question the decision.

In other words, if a trade-off is to be accepted between human rights and international security, due process must be made available to all parties involved. In this case, the judges found it lacking and struck Kadi’s name from the EU’ blacklist.

In doing so, the Court effectively took a chainsaw to the Union’s entire financial restrictions system, frayed the transatlantic relationship – the US was obviously not happy - and prompted legal scholars everywhere to start publishing books on the outcome of the case.

Seen from this perspective, the Union’s inaction in properly addressing the concerns of the court is baffling. In the wake of the Kadi case, several piecemeal solutions were adopted but, as the recent string of cases show, they weren’t enough.

In March, the EU court proposed amendments to Union rules that would allow them to review classified information when dealing with financial sanctions. So far, these amendments have not left the desk of the council.

With Western leaders increasingly unwilling to use military power, sanctions and asset freezes have become essential instruments in the policymakers’ toolkit.

Sanctions have wide-ranging consequences for the targeted actors and should not be used for political posturing.

The fault lies not with the EU court, which plays an essential role in safeguarding fundamental rights, but with an opaque European bureaucracy.

Transparency, and the observance of basic rights should be part of the council’s regulatory regime on sanctions. Judges in Luxembourg have made it clear: reasons of national security cannot and will not supersede human rights.

The writer is a freelance political consultant and blogger based in Slovakia