The EU-Russia sanctions regime before the Court of Justice of the EU
The events in Crimea and Eastern Ukraine prompted the European Union (EU) to adopt several ‘packages’ of restrictive measures against Russia. A number of attempts have been made by natural and legal persons to challenge the validity of those measures before the General Court and the Court of Justice of the EU. Despite the fact that the applicants in all of these cases were unsuccessful and the judgments largely confirmed the existing case law of the Court of Justice of the EU (CJEU), these cases deserve special attention for a number of reasons.
Firstly, they provide an important clarification of the application of the listing criteria developed in the context of the Ukrainian crisis. In the Rotenberg and Kiselev cases, the General Court gave a restrictive reading of the notion of ‘active support’ used in the sanction criteria as covering only those forms of support which, by their quantitative or qualitative significance, contribute to Russia’s actions and policies destabilising Ukraine. This rather restrictive reading fits well with the fifth principle guiding the EU’s policy towards Russia, implying that only a small group of persons will be liable to fall under this criterion and that it will not threaten people-to-people contacts at large.
Secondly, the Court had the opportunity to rule on the validity of different types of measures. While the Almaz-Antey Air and Space Defence, Kiselev, and Rotenberg cases dealt with the freezing of assets, in other cases the Court examined general economic measures, such as the restriction of access to capital markets and export restrictions. Rosneft and NK Rosneft and Others present a particular interest in this regard as the Court addressed the issue of the legality of those measures with regard to the provisions of the EU-Russia Partnership and Cooperation Agreement of 1994 (PCA) and WTO law. Those expecting an elaborate analysis were however quickly disappointed as the Court basically confirmed the Council’s broad discretion for the adoption of political decisions. In its appraisal of the necessity of restrictive measures for the protection of EU essential security interests, it relied entirely on the Council’s assessment contained in the preambles of the contested acts transforming an already limited judicial control in a pure formality. In a situation where restrictive measures are imposed by the EU on the ground of international law violations, this reluctance by the CJEU to exercise an effective control as to the respect of international law – or at least conduct its own assessment of the situation – can be seen as questioning the Court’s stance as an independent non-political institution.
Thirdly, what is even more important, some of the cases brought a significant contribution to the development of the Court’s jurisprudence in the area of CFSP as the Court was prompted to deal with several new legal issues. The Rotenberg case, for instance, answers the question of whether persons in charge of certain businesses may be included in the sanctions list because they benefited from the decision-makers at any point in time or whether the EU institutions need to demonstrate the existence of such a connection at the time when the third state’s illegal actions took place. In the Kiselev case, the General Court had to ascertain the legality of restrictive measures taken against a journalist in the light of the freedom of expression. In its turn in Rosneft, the Court of Justice ruled on the possibility to challenge the legality of autonomous restrictive measures via the preliminary reference procedure. Finally, the number and nature of the cases may also contribute to the debate on the effectiveness of the sanctions. The present chapter does not seek to describe the cases one by one, but rather analyses their contribution to the development of the CJEU case-law on restrictive measures by focusing on the key issues discussed in these cases.