The EU as pawn in a nasty game

But given the significance of recent ECJ decisions in similar cases with respect to a new emphasis on fundamental rights and a return to the rule of law – long in decline after 9/11 - combined with the toll that sanctions against Russia have taken on the economies of EU member state, this is indeed worth watching.

Some commentators view the Russian actions as merely symbolic and unlikely to have any effect. Others, like Matthew Turner in EUobserver, are outraged that the EU would value human rights over its purported ‘security’.

Whatever result ensues, it is at least conceivable that a pro-Russian outcome will enable the EU to pull back, without loss of face, from sanctions essentially foisted upon it, like the similarly Russia-excluding TTIP, by US lobbies, to its significant detriment.

If the success of recent legal challenges brought before the ECJ in similar cases is any indication, unilateral economic sanctions may begin to lose their punch in the near future.

Reversing the trend

When Saudi financier, Yasin al-Kadi, first challenged the freezing of his funds under an EU Regulation enacted pursuant to a UN list after 9/11, the Court of First Instance found that UN resolutions trumped the right to have access to evidence supporting his placement on the UN list and to the right mount a legal defense.

This was overturned by the ECJ, based on EU human rights principles accepted by the EU prior to the inclusion of the Charter of Fundamental Rights in the 2009 Lisbon Treaty.

In October 2014, the General Court annulled measures placing the Tamil Tigers on the EU list of terrorist organisations on the basis that maintenance on the list relating to frozen funds had been based on unreliable grounds that did not derive from decisions of ‘competent authorities’.

Just weeks earlier, Ahmed Mohmamed Qadhaf Al Dam, Muammar Gaddafi’s cousin and former head of Libya’s elite security force, was cleared due to insufficient evidence.

Arguably, the General Court is attempting to temper this trend with its most recent decision on the subject, upholding restrictive measures against dual national (French/Syrian) Adib Mayaleh for ‘providing economic and financial support to the Syrian regime through his functions as the Governor of the Central Bank of Syria’.

The Court found that the Council “was entitled to use Mayaleh’s professional duties as the sole ground for adopting restrictive measures against him”. While it would be unwise to speculate as to how the European Court of Justice might rule on appeal in this case, on its face, to find the Governor of a central bank subject to sanctions for ‘providing economic and financial support’ to an unpopular regime through his professional functions seems to be stretching the rule of law a bit thin.

The EU has suffered considerably from its various sanctions against Russians, just as it will suffer considerably from the TransAtlantic Trade and Partnership Agreement should that ever be ratified.

Both sanctions and the Agreement are the result of US corporate lobbying of the Commission, and it is American corporations alone who will benefit from both.

It is hoped that in rejecting these sanctions, the European Court will begin a reversal of this trend and strike a blow in favour of democracy and European sovereignty.

Virginia Brown Keyder is an instructor in EU law at Sabanci and Bogazici Universities, Istanbul, visiting professor in international law at Binghamton University, New York and a former attorney at law (New York Bar).