International Sanctions of the European Union in Search of Effectiveness and Accountability

Freedom, Security & Justice: European Legal Studies Rivista giuridica di classe A 2022, n. 3 DIRETTORE Angela Di Stasi Ordinario di Diritto Internazionale e di Diritto dell’Unione europea, Università di Salerno Titolare della Cattedra Jean Monnet 2017-2020 (Commissione europea) "Judicial Protection of Fundamental Rights in the European Area of Freedom, Security and Justice" COMITATO SCIENTIFICO Sergio Maria Carbone, Professore Emerito, Università di Genova Roberta Clerici, Ordinario f.r. di Diritto Internazionale privato, Università di Milano Nigel Lowe, Professor Emeritus, University of Cardiff Paolo Mengozzi, Professore Emerito, Università "Alma Mater Studiorum" di Bologna - già Avvocato generale presso la Corte di giustizia dell’UE Massimo Panebianco, Professore Emerito, Università di Salerno Guido Raimondi, già Presidente della Corte EDU - Presidente di Sezione della Corte di Cassazione Silvana Sciarra, Professore Emerito, Università di Firenze - Presidente della Corte Costituzionale Giuseppe Tesauro, Professore f.r. di Diritto dell'UE, Università di Napoli "Federico II" - Presidente Emerito della Corte Costituzionale Antonio Tizzano, Professore Emerito, Università di Roma “La Sapienza” - Vice Presidente Emerito della Corte di giustizia dell’UE Ennio Triggiani, Professore Emerito, Università di Bari Ugo Villani, Professore Emerito, Università di Bari COMITATO EDITORIALE Maria Caterina Baruffi, Ordinario di Diritto Internazionale, Università di Verona Giandonato Caggiano, Ordinario f.r. di Diritto dell’Unione europea, Università Roma Tre Alfonso-Luis Calvo Caravaca, Catedrático de Derecho Internacional Privado, Universidad Carlos III de Madrid Pablo Antonio Fernández-Sánchez, Catedrático de Derecho Internacional, Universidad de Sevilla Inge Govaere, Director of the European Legal Studies Department, College of Europe, Bruges Paola Mori, Ordinario di Diritto dell'Unione europea, Università "Magna Graecia" di Catanzaro Lina Panella, Ordinario di Diritto Internazionale, Università di Messina Nicoletta Parisi, Ordinario f.r. di Diritto Internazionale, Università di Catania - già Componente ANAC Lucia Serena Rossi, Ordinario di Diritto dell'UE, Università "Alma Mater Studiorum" di Bologna - Giudice della Corte di giustizia dell’UE COMITATO DEI REFEREES Bruno Barel, Associato f.r. di Diritto dell’Unione europea, Università di Padova Marco Benvenuti, Ordinario di Istituzioni di Diritto pubblico, Università di Roma "La Sapienza" Raffaele Cadin, Associato di Diritto Internazionale, Università di Roma “La Sapienza” Ruggiero Cafari Panico, Ordinario f.r. di Diritto dell’Unione europea, Università di Milano Ida Caracciolo, Ordinario di Diritto Internazionale, Università della Campania - Giudice dell’ITLOS Federico Casolari, Associato di Diritto dell’Unione europea, Università “Alma Mater Studiorum” di Bologna Luisa Cassetti, Ordinario di Istituzioni di Diritto Pubblico, Università di Perugia Giovanni Cellamare, Ordinario di Diritto Internazionale, Università di Bari Giuseppe D’Angelo, Ordinario di Diritto ecclesiastico e canonico, Università di Salerno Marcello Di Filippo, Ordinario di Diritto Internazionale, Università di Pisa Rosario Espinosa Calabuig, Catedrática de Derecho Internacional Privado, Universitat de València Ana C. Gallego Hernández, Profesora Ayudante de Derecho Internacional Público y Relaciones Internacionales, Universidad de Sevilla Pietro Gargiulo, Ordinario di Diritto Internazionale, Università di Teramo Giancarlo Guarino, Ordinario f.r. di Diritto Internazionale, Università di Napoli “Federico II” Elspeth Guild, Associate Senior Research Fellow, CEPS Victor Luis Gutiérrez Castillo, Profesor de Derecho Internacional Público, Universidad de Jaén Ivan Ingravallo, Associato di Diritto Internazionale, Università di Bari Paola Ivaldi, Ordinario di Diritto Internazionale, Università di Genova Luigi Kalb, Ordinario di Procedura Penale, Università di Salerno Luisa Marin, Marie Curie Fellow, EUI e Ricercatore di Diritto dell’UE, Università dell’Insubria Simone Marinai, Associato di Diritto dell’Unione europea, Università di Pisa Fabrizio Marongiu Buonaiuti, Ordinario di Diritto Internazionale, Università di Macerata Daniela Marrani, Ricercatore di Diritto Internazionale, Università di Salerno Rostane Medhi, Professeur de Droit Public, Université d’Aix-Marseille Stefano Montaldo, Associato di Diritto dell’Unione europea, Università di Torino Violeta Moreno-Lax, Senior Lecturer in Law, Queen Mary University of London Claudia Morviducci, Professore Senior di Diritto dell’Unione europea, Università Roma Tre Michele Nino, Associato di Diritto Internazionale, Università di Salerno Criseide Novi, Associato di Diritto Internazionale, Università di Foggia Anna Oriolo, Associato di Diritto Internazionale, Università di Salerno Leonardo Pasquali, Associato di Diritto dell'Unione europea, Università di Pisa Piero Pennetta, Ordinario f.r. di Diritto Internazionale, Università di Salerno Emanuela Pistoia, Ordinario di Diritto dell’Unione europea, Università di Teramo Concetta Maria Pontecorvo, Ordinario di Diritto Internazionale, Università di Napoli “Federico II” Pietro Pustorino, Ordinario di Diritto Internazionale, Università LUISS di Roma Santiago Ripol Carulla, Catedrático de Derecho internacional público, Universitat Pompeu Fabra Barcelona Gianpaolo Maria Ruotolo, Ordinario di Diritto Internazionale, Università di Foggia Teresa Russo, Associato di Diritto dell'Unione europea, Università di Salerno Alessandra A. Souza Silveira, Diretora do Centro de Estudos em Direito da UE, Universidad do Minho Ángel Tinoco Pastrana, Profesor de Derecho Procesal, Universidad de Sevilla Chiara Enrica Tuo, Ordinario di Diritto dell’Unione europea, Università di Genova Talitha Vassalli di Dachenhausen, Ordinario f.r. di Diritto Internazionale, Università di Napoli “Federico II” Alessandra Zanobetti, Ordinario di Diritto Internazionale, Università “Alma Mater Studiorum” di Bologna COMITATO DI REDAZIONE Francesco Buonomenna, Associato di Diritto dell’Unione europea, Università di Salerno Angela Festa, Ricercatore di Diritto dell’Unione europea, Università della Campania “Luigi Vanvitelli” Caterina Fratea, Associato di Diritto dell’Unione europea, Università di Verona Anna Iermano, Ricercatore di Diritto Internazionale, Università di Salerno Angela Martone, Dottore di ricerca in Diritto dell’Unione europea, Università di Salerno Michele Messina, Associato di Diritto dell’Unione europea, Università di Messina Rossana Palladino (Coordinatore), Ricercatore di Diritto dell’Unione europea, Università di Salerno Revisione linguistica degli abstracts a cura di Francesco Campofreda, Dottore di ricerca in Diritto Internazionale, Università di Salerno Rivista quadrimestrale on line “Freedom, Security & Justice: European Legal Studies” www.fsjeurostudies.eu Editoriale Scientifica, Via San Biagio dei Librai, 39 - Napoli CODICE ISSN 2532-2079 - Registrazione presso il Tribunale di Nocera Inferiore n° 3 del 3 marzo 2017 Indice-Sommario 2022, n. 3 Editoriale Novae e veteres “frontiere” della cittadinanza europea Angela Di Stasi p. 1 Saggi e Articoli In tema di immunità dello Stato dalla giurisdizione: il complesso bilanciamento tra tutela dei diritti della persona e prerogative della Santa Sede Silvia Cantoni The European Union External Action, Administrative Function and Human Rights Protection under the Lens of the EU Ombudsman and a Recent Strategic Initiative Francesca Martines Libertà di espressione e tutela della dignità delle giornaliste: il contrasto all’online sexist hate speech nello spazio digitale europeo Claudia Morini La normalizzazione della sorveglianza di massa nella prassi giurisprudenziale delle Corti di Strasburgo e Lussemburgo: verso il cambio di paradigma del rapporto privacy v. security Michele Nino Il diritto del minore alla libertà di religione: la recente giurisprudenza della Corte europea dei diritti dell’uomo e il rilievo della Convenzione sui diritti dal fanciullo Giuseppina Pizzolante International Sanctions of the European Union in Search of Effectiveness and Accountability Alfredo Rizzo Commenti e Note La risposta della Commissione europea al “deterioramento” del diritto di asilo in Grecia: riflessioni sull’attenuato attivismo dell’Istituzione “guardiana dei Trattati” Marcella Cometti La migrazione legale per motivi di lavoro a due anni dalla presentazione del “Nuovo Patto sulla migrazione e l’asilo”: una riforma (in)compiuta? Francesca Di Gianni p. 16 p. 39 p. 67 p. 105 p. 134 p. 158 p. 175 p. 211 Questioni giuridiche e problemi di tutela dei diritti fondamentali nella risposta dell’Unione europea alle pratiche di strumentalizzazione dei flussi migratori Mirko Forti Environmental Solidarity in the Area of Freedom, Security and Justice. Towards the Judicial Protection of (Intergenerational) Environmental Rights in the EU Emanuele Vannata p. 245 p. 266 Freedom, Security & Justice: European Legal Studies ISSN 2532-2079 2022, n. 3, pp. 158-174 DOI:10.26321/A.RIZZO.03.2022.07 www.fsjeurostudies.eu INTERNATIONAL SANCTIONS OF THE EUROPEAN UNION IN SEARCH OF EFFECTIVENESS AND ACCOUNTABILITY Alfredo Rizzo SUMMARY: 1. Introduction. – 2. Expanding Criminal procedural Law to International sanctions. – 2.1. Setting the scene. – 2.2. Effet Utile as a basic standard for Union’s competences and policies – 3. From Kadi to Rosneft and beyond. – 3.1. The right for individuals to Challenge Union sanctions. – 3.2. Recent developments on Action for Damages against Union Restrictive measures. – 4. The trend: the Union Global Human Rights Sanctions Regime. – 5. Brief conclusions. 1. Introduction The issue of international sanctions adopted by the Union, with specific reference to those addressed on individuals and private undertakings (art. 215 para. 2 Treaty on the Functioning of the European Union, TFEU), is increasingly relevant and expanding on several areas of law. In order to prove how Union law is evolving in this field, the paper suggests tackling three main topics. The first one deals with a recent proposal from the Commission to adopt criminal procedural law tools aimed at granting effective and uniform implementation of sanctions regimes inside each Union’s member State. The second one addresses on the developments of relevant case-law expanding and strengthening individuals’ capacity to challenge Union’s restrictive measures, providing with a fast overview of recent case-law at the Union’s level on individuals’ right to ask for damages against same Union’s sanctions. Finally, the trend towards a reinforcement of individuals’ prerogatives in this area of law, will be examined in the last field of analysis, by comparison with the Human Rights Sanctions Regime (HRSR) adopted by the Union two years ago. The wideness of same regime’s scope might encroach with some procedural individual rights, as both relevant Treaty’s provisions (Art. 263, para. 4 and art. 275, para. 2 TFEU) and related case-law amply prove. Double blind peer reviewed article.  Rome Bar Association, European Union Law expert (University of Rome “La Sapienza”; University of Perugia). E-mail: [email protected]; [email protected]. Alfredo Rizzo 159 The interaction between mentioned topics might show the trend in this area of Union law, in search of increasing effectiveness beside the still debated question of a true and plain Union’s accountability for the safeguard of third parties’ rights. 2. Expanding Criminal procedural Law to International sanctions 2.1. Setting the scene Following the Lisbon reforms on cooperation in the criminal law area, the Union has adopted some acts addressing individuals’ misconducts, tackling also and more deeply than the past some procedural issues arising from the need that relevant Union’s acts dealing with the definition of true “supranational” crimes be adequately implemented at the national level. On this, one should not forget the relevant legislation of the Union on freezing (in Italian, sequestro) and confiscation of assets 1 as procedural means applicable in cases of crimes listed under art. 83 TFEU 2 . The present legislative trend on restrictive measures in the Union should be put in this framework as well. In fact, the Commission has recently submitted a Proposal for a Council Decision on adding the breach of Union restrictive measures to the areas of crimes laid down in Article 83(1) TFEU 3 . On the substance, the same Commission stresses the need for a common action at Union level, particularly when it comes considering the many disparities at the national levels on procedural means for the fight of relevant crimes. In addition, the Commission has also presented a Proposal for a Directive on the establishment of minimum standards on traceability and identification, freezing, confiscation and management of assets in the context of criminal proceedings 4 . The proposal for a directive (based on article 87 TFEU, on police cooperation, in addition to articles 82 par. 2 and 83 same treaty) is aimed at strengthening the links of intra-European coordination in investigative and judicial activities concerning all procedural tools concerning the aggression, in instrumental or definitive form (e.g., by virtue of an 1 Directive 2014/42/EU of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union based on both Art. 82(2) and Art. 83(1) TFEU), OJ L 127, 29.4.2014, p. 39, Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on the mutual recognition of freezing orders and confiscation orders OJ L 303, 28.11.2018, p. 1. On this, see Notice of the Ministry of Justice of Italy, Dept. for Justice affairs, 18 February 2021 - Implementation of Regulation (EU) 2018/1805 on the mutual recognition of freezing and confiscation orders February 18, 2021, prot. m_dg_DAG.18 / 02 / 2021.0035566.U accessible here https://www.giustizia.it/giustizia/it/mg_1_8_1.page?facetNode_1=0_10_35&facetNode_2=1_1%282021 %29&contentId=SDC322010&previsiousPage=mg_1_8 2 Terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. 3 European Commission, Proposal for a Council Decision on adding the violation of Union restrictive measures to the areas of crime laid down in Article 83(1) of the Treaty on the Functioning of the European Union, COM (2022) 247 of 25 May 2022. 4 Proposal of 25 May 2022, COM 2022 fin. 245. International Sanctions of the European Union 160 www.fsjeurostudies.eu established crime, see article 240 of the Italian Criminal Code), of assets deriving directly or not from criminal activities such as listed in art. 2 of the same proposal. In the second paragraph of art. 1 of the proposal, it is clearly established that the directive aims to put in place rules that facilitate the effective implementation of the restrictive measures of the Union and the subsequent recovery of the related assets to prevent, ascertain or investigate behaviors constituting the violation of restrictive measures of the Union and, in particular, the violation of restrictive measures addressed on natural or legal persons pursuant to art. 215 par. 2 TFEU. In the explanatory section of the proposal, it is clearly recalled that the Union had already adopted restrictive measures against Russia and Belarus in March 2014, expanding them in response to the illegal annexation of Crimea and Sevastopol by Russia itself. These measures, adopted on the basis of Article 29 of the Treaty on European Union (TEU, rule concerning particular Council decisions of a “geographical” or “thematic” nature) and Article 215 TFEU, follow a “comprehensive” approach , using both sectoral measures, referring to certain areas of activity, and individual measures, aimed at limiting the activities of individuals, legal or natural persons, also in the form of freezing or confiscation of assets. In broad terms, the trend towards a widening of Union’s competences in the area of freedom security and justice (AFSJ) was significant in the field of e.g., cooperation on civil law matters, even before Lisbon treaty amendments 5 . With specific reference to judicial cooperation on criminal law, in the post-9/11 scenario, the overlap between aims under the Common foreign and security policy (CFSP) and those under mentioned AFSJ increased in the frame of anti-terrorism aims of the “second wave” of Union’s legislative acts that sanctioned individuals (see art. 215 para. 2 TFEU) held to be responsible for the performance of – or the support to – grave terrorist acts with an international relevance, also under the terms of related UN Security Council resolutions. In that context, the Court of Justice of the European Union (CJEU) notoriously proclaimed the Union’s legal system “autonomy” thanks to the possibility for sanctions’ addressees to protect their basic procedural (and, as the case may be, substantive) rights presumably breached by relevant Union’s acts enacting restrictive measures under relevant treaties’ provisions 5 In the Court of Justice of the Union’s (CJEU) view, same Union’s competence has progressed so as to allow the same organization to perform an external exclusive competence even beyond the criteria normally required for such a competence to arise, see CJEU Opinion 1/03 of 7 February 2006, Competence of the Community to conclude the new Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters ECLI:EU:C:2006:81 (E. CANNIZZARO, Le relazioni esterne dell’Unione europea: verso un paradigma unitario?, in il Diritto dell’Unione europea, 2007, p. 223). The 16 September 1988 Lugano Convention OJ L 339, 21.12.2007, p. 3, which is the subject of opinion 1/03, extended to the countries members to the European Free Trade Agreement (EFTA), the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, OJ L 299, 31.12.1972, p. 32, ex multis, F. POCAR (ed.), La Convenzione di Bruxelles sulla giurisdizione e l’esecuzione delle sentenze, Milan, 1995; S. M. CARBONE, C. TUO, Il nuovo spazio giuridico europeo in materia civile e commerciale. Il Regolamento 1215/2012, Turin, 2016; A. RIZZO, La dimensione esterna dello Spazio di libertà sicurezza e giustizia. Sviluppi recenti e sfide aperte, in Rivista 2017, p. 147. On the “large extent” criterion, CJEU Opinion 2/91 of 19 March 1993, ILO Convention n. 170, EU:C:1993:106 (p. 25) and CJEU of 4 Sept. 2014, C-114/12, European Commission v. Council of the European Union, ECLI:EU:C:2014:2151; ex multis, A. ROSAS, EU External Relations: Exclusive Competence Revisited in Fordham International Law Journal, 2015, p. 1073 (part. p. 1085). Alfredo Rizzo 161 (art. 263 para. 4 and art. 275 para. 2 TFEU) 6 . The nexus was particularly stressed by the CJEU in some cases concerning the fight of terrorism in a post-Kadi scenario 7 . The interaction between the Union’s sanctions policy (under both CFSP and art. 215 TFEU), on the one hand, and objectives pursued in the AFSJ, on the other, is made even clearer by the above-mentioned proposal under discussion. On the other hand, questions of definition of mentioned topics arises. First of all, it should be kept in mind that, in the pre-Lisbon framework, the approach of the Union to restrictive measures against non-EU nationals or companies was in most cases based on free movement of capitals objectives, as originally established under art. 60 of the Treaty of the European Community (TEC). In the same vein, other restrictive measures have been based on commercial policy objectives. One known example of this is offered by the Centro-Com decision 8 , when the CJEU had to assess the annulment of a regulation that laid down trade embargoes against the former Federal Republic of Yugoslavia 9 , adopted by the Community to contribute to the achievement of purposes under related United Nations Security Council resolutions 10 . 6 For sanctions against individuals, see, in the pre-Lisbon context, CJEU 3 September 2008, C-402/05 P & C-415/05 P, Kadi, EU:C:2008:461, para 326 and the too abundant literature on this seminal case; see, ex multis, M. GATTI, Conflict of Legal Bases and the Internal-External Security Nexus: AFSJ versus CFSP, S. POLI, Effective Judicial Protection and Its Limits in the Case Law Concerning Individual Restrictive Measures in the European Union and A. ROSAS, EU Sanctions, Security concerns and Judicial control, in E. NEFRAMI, M. GATTI (eds.) Constitutional issues in EU External Relations Law, Luxemburg, 2018, respectively, p. 89, p. 287 and p. 307. See also A. ROSAS, Terrorist listing and the Rule of Law. The Role of the EU Courts, in European University Institute Working papers, Robert Schuman Center for Advanced Studies, Florence, 2011, n. 11. 7 See CJEU 19 July 2012 C-130/10, European Parliament v. Council, ECLI:EU:C:2012:472, paras. 61 and 63; “ (…) while admittedly the combating of terrorism and its financing may well be among the objectives of the area of freedom, security and justice, as they appear in Article 3(2) TEU, the objective of combating international terrorism and its financing in order to preserve international peace and security corresponds, nevertheless, to the objectives of the Treaty provisions on external action by the Union”; on those objectives, the Court clarified what follows: “Given that terrorism constitutes a threat to peace and international security, the object of actions undertaken by the Union in the sphere of the CFSP, and the measures taken in order to give effect to that policy in the Union’s external actions, in particular, restrictive measures for the purpose of Article 215(2) TFEU, can be to combat terrorism”. For some critical remarks on the Court’s assessments, M.E. BARTOLONI, Tutela dei diritti fondamentali e basi giuridiche di sanzioni UE nei confronti di persone, o enti non statali, collegati con attività terroristiche, in Diritti umani e diritto internazionale, 2013, vol. 7, p. 222. 8 CJEU of 14 January 1997, C-124/95, R. v. H.M. Treasury and Bank of England ex parte Centro-Com ECLI:EU:C:1997:8. In this regard, see also the Court decisions, 30 July 1996, case C-84/95, Bosphorus Hava Yollari Turizm, ECLI:EU:C:1996:312 , and CJEU 27 February 1997, case C-177/95, Ebony Maritime and Loten Navigation , ECLI:EU:C:1997:89. This jurisprudence has confirmed a practice based on art. 113 EEC Treaty (later 133, now 207, of the TEC) establishing various trade measures with restrictive character and addressed to, inter alia, the former Republics of the former Soviet Union, some ex-socialist countries of Central Eastern Europe and some members of the former Federal Republic of Yugoslavia. 9 Regulation 1432/92 of 1 June 1992 prohibiting trade between the European Economic Community and the Republics of Serbia and Montenegro, in OJ L 158, 11.6.1992, p. 1. 10 According to the Court, the purposes of common commercial policy were apt to justify Community interventions affecting other policies, including those relating to the “second pillar” of the treaties (Common Foreign and Security Policy). In that case, a direct comparison – that is, without the filter of the “second pillar” (CFSP) measures – was made between UN resolutions and EU regulations. Moreover, on questions dealing with the links between the national restrictive measures and those under relevant EU regulation, the Court ruled that the second ones should prevail each time such restrictions pursue same aims International Sanctions of the European Union 162 www.fsjeurostudies.eu It might then be considered, also under remarks above, to what extent the current proposal from the Commission, aimed, as we have seen, at implementing restrictive measures by means of criminal procedural law tools (at least when such measures are not respected in the Member States) applies also where same restrictive measures have a mostly economic character 11 . A first “empirical” answer to this question might be that the Commission is committed in “centralizing” the implementation of such measures, in the light of the risk that the variety of approaches at the national levels might impair the same restrictive measures’ effectiveness. This leads us back to a long-lasting debate dealing with the effet utile criterion applicable to the Union’s legislative acts or provisions fit to restrict individuals’ freedoms. 2.2. Effet utile as a basic standards for Union’s competences and policies Indeed, provisions addressing individuals’ behaviors for the sake of protecting specific interests and objectives were established in the Treaties. In the mid-eighties of the last century, there was a debate concerning how competition rules as enshrined in the EC Treaty might have been transposed into the Italian legal system, if by means of administrative law or, alternatively, by means of criminal law instruments. In the end, the failure to provide for criminal sanctions in the 1990 Italian antitrust law was due to various reasons. The description of a case related to an infringement of competition law, in fact, presents margins of ambiguity that are incompatible with the need to fully comply with the determination of the crime and the need that the crime’s consequences must be assessed as much precisely as possible in legal terms. It is known, however, that the European Court of Human Rights (ECtHR) has applied the right to defense and the right to an effective remedy to the acts of the European Commission aimed at sanctioning violations of competition rules under relevant EU law: this fact exemplifies how the administrative measures aimed at implementing competition rules follow an approach that is comparable to that followed under criminal law, although with different effects (e.g., no procedural criminal law measures are applicable) 12 . We will not dwell on this, (international security, see art. 11 of Regulation 1432/96) as that pursued under national legislation. See ex multis B. CORTESE, International Economic Sanctions as a Component of Public Policy for Conflict-ofLaws Purposes, in L. PICCHIO FORLATI , L.-A. SICILIANOS (eds.), Economic Sanctions in International Law / Les sanctions économiques en droit international - Hague Academy of International Law, The Law Books of the Academy, 2004,vol. 23, The Hague, p. 717, in part. p. 725. 11 For a first critical comment on this, see M. GESTRI, Sanctions Imposed by the European Union: Legal and Institutional Aspects, in N. RONZITTI (ed.), Coercive diplomacy, Sanctions and International Law, Leiden, 2016, p. 71, in part. p. 90 ff. 12 See in point European Court of Human Rights (ECtHR), 27 September 2011 Menarini Diagnostics S.R.L. v Italy, Appl. N. 43509/08, paras. 40-45 : “l’AGCM a prononcé en l’espèce une sanction pécuniaire de six millions d’euros, sanction qui présentait un caractère répressif puisqu’elle visait à sanctionner une irrégularité, et préventif, le but poursuivi étant de dissuader la société intéressée de recommencer. En outre, la Cour note que la requérante souligne que le caractère punitif de ce type d’infraction ressort aussi de la jurisprudence du Conseil d’Etat … A la lumière de ce qui précède et compte tenu du montant élevé de l’amende infligée, la Cour estime que la sanction relève, par sa sévérité, de la matière pénale”. With Alfredo Rizzo 169 legislative act with immediate effect might have caused serious and irreparable harm to the effectiveness of the restrictive measures imposed by the regulation against Iran, since “it cannot be excluded that, as regards the substance, the imposition of restrictive measures on [HTTS] could nonetheless be justified” 32 . The story followed with a series of actions by same HTTS and the main addressees of the restrictive measures. Most, if not all, of relevant General Court decisions repealed the Union restrictive measures. On this background, HTTS raised an action for damages before the GC against the Union. The GC, however, quashed such request 33 . Among the many reasons, it might be interesting to mention here that the GC based its decision, on the one hand, on the need that the claimant proves that the defendant institutions committed a particularly flagrant and inexcusable failure to comply with the law 34 , and, on the other hand, on the fact that the previous annulment of Union acts (as confirmed by all the previous abovementioned case-law) was as such not apt at giving rise to a noncontractual liability of same Union institutions: this is on the basis of a well-known understanding of the two kind of actions as mutually separated due to a true autonomy of the same action in damages as aimed at allowing individuals to challenge any Union acts specifically on such acts’ presumptive harmful effects, in conformity with general principles common to the Member States legal systems 35 . Among the reasons for rejection of the action on damages, the GC mentioned the need to prove the effective ownership and control performed on the complainant by the main company (IRISL Gmbh) to which the sanctions regime was addressed as a whole. In fact, in GC’s opinion, the Council, as a defendant, evidenced quite satisfactorily that, inter alia, the director of HTTS previously carried out the functions of legal director of IRISL and that HTTS had the same address as IRISL Europe GmbH. For GC, this amounted to a set of indicia that were sufficiently precise and consistent for it to conclude that it was at least plausible that HTTS was controlled by and/or was acting on behalf of IRISL 36 . Above all these issues, the CJEU in the subsequent 2019 decision 37 examined in particular if a sufficiently serious breach of a rule of law intended to confer rights on 32 See judgment on note 32 above, paras. 41-42. 33 General court of 13 December 2017, T-692/15, HTTS v. Council, ECLI:EU:T:2017:890. 34 See in part. para. 46 of this judgment: “(…) in assessing the conduct of the institution concerned, the Court, hearing an action for damages brought by an economic operator, is also required, having regard in particular to Article 215(2) TFEU, to take account of that fundamental objective of Union foreign policy, except where the operator is able to establish that the Council failed to comply with its mandatory obligations in a flagrant or inexcusable manner, or that it infringed, again in a flagrant or inexcusable manner, a fundamental right recognised by the Union”. 35 For an overview, ex multis, judgments CJEU 2 December 1971, 5/71, Zuckerfabrik Schöppenstedt v Council, ECLI:EU:C:1971:116, para. 3; 23 March 2004, C-234/02 P, Ombudsman v. Lamberts ECLI:EU:C:2004:174, in part. para. 49 ff.; General Court of 18 September 2014, T-168/12, Georgias and Others v Council and Commission, ECLI:EU:T:2014:781, para. 32. 36 At para. 57 the GC in its judgment of 2017, reminds that “the Council must assess whether an entity is ‘owned or controlled’ on a case-by-case basis, by reference, inter alia, to the degree to which the entity concerned is owned or controlled, and that the Council has a certain margin of appreciation in this regard” (CJEU of 13 March 2012, C-380/09, P, Melli Bank v Council ECLI:EU:C:2012:137, at paras. 40 to 42). 37 See case CJEU of 10 September 2019, C-123/18 P, ECLI:EU:C:2019:694, in the point where same Court recalls that “the requirement that there be a sufficiently serious breach of a rule of EU law, in order to give International Sanctions of the European Union 170 www.fsjeurostudies.eu individuals occurred in the case at hand, considering that such breach implies that the institution concerned manifestly and gravely disregarded the limits set on its discretion 38 . In general, for the Court one of the problems met in the HTTS saga dealt with the fact that the “damage” claimed by the complainant against Union’s institutions has, in general, a fluid meaning that may evolve in time. So, for the CJEU, the General Court didn’t assess in a sufficiently careful way if the claimant suffered such a kind of damage as from the first acts adopted by the Council and during the whole of the developments around the position of IRISL as the main addressee of the sanctions’ regime. This evaluation, in fact, should be assessed separately from the annulment of relevant acts of the Union dealing with the sanction regime in question. In the more recent decision adopted on July 7th 2021 39 following the decision of the CJEU to refer back the case, the same GC stated that, though an action for damages should be considered as one of the more basic and general means of defense of individuals’ rights against public authorities (at least in a developed legal system), the kind of infringement foreseen at art. 340 TFEU is not entirely comparable to what is “usually” accepted at the national level in this area of law (non-contractual liability). In fact, such infringement, in order for it to come under same art. 340 TFEU ambit, should be particularly flagrant and inexcusable. And this, in the same GC’s view because the aims of Union’s external action under art. 21 TEU can be achieved, inter alia, by means of restrictive measures, also at the cost, whenever required, of individuals’ rights or economic interests, if such individuals infringed, even under a just sufficient evidence, obligations to which same Union is bound under same art. 21 TEU and stemming from relevant Union’s sanctions regime. The conclusion above is based inter alia on the premise that restrictive measures under current art. 215 TFEU do not share same characters of other means addressing individuals’ behaviors contrary to basic Union’s aims and obligations. In fact, in the Lisbon Treaty framework, the pursuit of wider political objectives (e.g., the protection of the international security and peace) as well as the interplay between CSFP and other Union’s objectives, notwithstanding art. 40 TEU, is more clearly established; besides, such interactions are clearly stated also by the same General Court in the mentioned HTTP decision. The damage possibly and often suffered by an individual under a sanctions regime based on art. 215 TFEU has a peculiar character in the context of the action for noncontractual liability of the Union, considering how such sanctions are mostly referred to major objectives pursued by the same organization. This might explain something on the rise to a non-contractual liability of the Union, stems from the need to strike a balance between, on the one hand, the protection of individuals against unlawful conduct of the institutions and, on the other, the leeway that must be accorded to the institutions in order not to paralyze action by them. That balancing exercise proves all the more important in the field of restrictive measures, in which the obstacles encountered by the Council in terms of availability of information often make the assessment that it must carry out particularly difficult”. 38 See p. 20 of Advocate General Pitruzzella opinion of 5 March 2019, ECLI:EU:C:2019:173. 39 General Court of 7 July 2021, T-692/15 RENV, ECLI:EU:T:2021:410, in part. paras. 42-66. Alfredo Rizzo 171 substance of Union system of defense of individual rights, though considering the significant effort in assessing that an action for damage is as such applicable to this area of Union law, regardless of the lack of any clear reference to such kind of action in the treaties. 4. The Trend: the Union Global Human Rights Sanctions Regime In this context, at Union’s level, the Global Human Rights Sanctions Regime (EU HRSR) under Council Regulation (EU) 2020/1998 concerning restrictive measures against serious human rights violations and abuses is currently in force 40 . It is first of all wise to notice that above acts are based on the one hand, on art. 29 TEU (CFSP) and, on the other, on article 215 TFEU. This new legislative framework follows a “thematic” approach for grave international law and human rights violations. Such “new” approach to Union’s sanctions ends the “country” or “individual” logic (art. 215 paras. 1 and 2 TFEU, giving relevance to sanctions’ addressees) and applies in full an “substantive” logic. The HRSR is inspired on Statute of Rome approach (and also on a preventive approach) to crimes considered as relevant under international law due to their accepted character and gravity. However, it should be reminded that effectiveness in internationally prosecuting such crimes has been proved difficult in consideration of the many conditions under same Rome Statute, including the subsidiary character of the International Criminal Court jurisdiction 41 . More tangible progress on the prosecution of particularly serious breaches of international duties has been achieved under the Convention against torture: in fact, the Convention allows, without forcing, State parties to assume criminal jurisdiction over cases of torture on the basis of the nationality of the victim (“passive personality principle”) 42 . 40 Council Decision (CFSP) 2020/1999 of 7 December 2020 concerning restrictive measures against serious human rights violations and abuses, in OJ L 41/0I , 7.12.2020, p. 13; Council Regulation (EU) 2020/1998 of 7 December 2020 concerning restrictive measures against serious human rights violations and abuses, OJ L 41/I , 7.12.2020, p. 1. See ex multis C. ECKES, EU global human rights sanctions regime: is the genie out of the bottle?, in Journal of Contemporary European Studies, DOI: 10.1080/14782804.2021.1965556; H. AL-NASSAR, E. NEELE, S. NISHIOKA, V. LUTHRA, Guilty Until Proven Innocent? The EU Global Human Rights Sanctions Regime’s Potential Reversal of the Burden of Proof, in Security and Human Rights, 2021, p. 1. 41 Under such “subsidiary” character of the ICC competence, same ICC cannot precede national authorities’ investigative and judiciary activities, unless such authorities have failed to initiate any of such activities notwithstanding relevant information from ICC Prosecutor office on the infringement of any of the Statute of Rome’s obligations committed by national officials, M.M. EL-ZEIDY, Admissibility in International Criminal Court, in W.A. SCHABAS, N. BERNAZ (eds.), Routledge Handbook of International Criminal Law, UK, USA, Canada, 2011, p. 211. 42 D. M. AMANN (ed.), Benchbook on International Law, in part. Jurisdictional, Preliminary, and Procedural Concerns, American Society of International Law, 2014, p. II-A 1, accessible https://www.asil.org/benchbook. Indeed, under art. 5(1)(c) of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85, available at: https://www.refworld.org/docid/3ae6b3a94.html [accessed 6 October 2022]), States are authorized but not obliged to establish criminal jurisdiction on the basis of the passive personality principle. Considering that, in the case of torture, we are dealing with international ius cogens International Sanctions of the European Union 172 www.fsjeurostudies.eu Above difficulties do not arise in the Union’s framework according to, on the one hand, the serious obligations member states of the Union must comply with under Union legislative acts and, on the other, the fact that any infringement of such obligations should be directly sanctioned by national authorities, be them administrative or judiciary, exception made for other kind of EU obligations stemming from Union acts such as directives, whose full implementation by the Member States is monitored by Union institutions under, e.g., infringement proceedings 43 . Anyhow, such problematic issues become more evident exactly under a broader approach to sanctions. On the one hand, wider sanctions regimes allow institutions to autonomously assess whether to sanction (or not) one or more specific infringements occurred “horizontally” in different geographical areas and against a not always definite list of individuals. On the other side, such approach may prove being inaccurate in the light of the relevant means of procedural law applicable in such cases, even considering the possibility that “horizontal” sanctions hit third parties not directly involved into such regimes. It should then be addressed the question of to what extent such broader regimes are consistent with other relevant Union treaties objectives, including procedural standards dealing with individuals’ right of access to both administrative and judicial means of redress. On the other hand, HRSR is clearly inspired on a preventive (and presumptive) approach, as such potentially harmful also for individuals not directly or not instantly involved by the regime. This might be challenging in either directions. As for an action in annulment, in many cases the evidence of being individually hit by the restrictive measures under an HRSR might be impossible to prove for anyone who admittedly suffered indirect or only subsequent effects (as such implicitly arising from any broad sanction regimes) from implementation of same HRSR. This falls in the logic of legislative acts of the Union and action for redress against such acts 44 . As for a reimbursement action, in general, as we have mentioned, the plaintiff must fulfil a particularly rigorous burden of proof, including, beside the proof of the Union institutions’ liability and of the causal link between the Union legislative source and the damage, that such damage be particularly meaningful, beyond what is normally accepted at national level in similar cases. Indeed, as the same HTTS case proved, a claimant who presumably suffered damages from the sanctions’ regime, should demonstrate that the Council committed a particularly grave violation of a rule aimed at conferring rights on individuals. In such cases, the GC repeated that the error in law of the institutions should be, as mentioned, blatant and flagrant. On the opposite, the Council of the Union, in order to react to same action for damages, must provide indications of an only sufficient link obligations under the meaning of art. 53 of the Vienna Convention on the Law of the Treaties, this should enlighten enough on the difficulties to acknowledge international jurisdiction on the other crimes with international law relevance but still not clearly placed (at least in broad terms) amongst ius cogens obligations. 43 On this, see also what has been described above, on the Union’s competence in the field of judicial cooperation on criminal law and on the effet utile criterion. 44 See CJEU of 1 April 2004, Jego Queré and P.K. LENAERTS, The Rule of Law and the Coherence of the Judicial System of the European Union, see supra n. 19. Alfredo Rizzo 173 between the claimant (though if the relevant measures were principally addressed to another company), his/its funds and the regime to be fought 45 . Also, and once more, in both cases – action for annulment and action for damages – the Union institutions and the CJEU might refer to art. 21 Treaty of the European Union (TEU) with the view of justifying negative consequences, even significant ones, deriving, for some operators, from decisions implementing acts adopted by the Union for the purpose of achieving EU general goals such as those under mentioned art. 21 TEU. So, under procedural law meaning, the above framework coming from the HRSR, looks rather (maybe too much) in favor of the institutions of the Union. 5. Brief conclusions Though the European Union acts can as such pursue general aims that, in some cases, might go beyond the boundaries normally surrounding a legislative act at the national level, it remains unclear to what extent this might be stretched under same Union law and in particular to what extent relevant (mostly procedural, and sometimes substantive) rights of individuals could suffer from such a broad understanding of the European Union prerogatives in this field. The HRSR raises doubts exactly in such direction and considering the many limitations for action of individuals against legislative acts of the Union, both as an action for annulment and as an action for damages (though considering the differences between the two kinds of action). In this context, action in damages seems reasonably extendable to CFSP decisions, if connections between such decisions and the subsequent acts under art. 215 TFEU result direct as far as the claimed damages are concerned, and exactly in order that same action in reimbursement be fully legitimized. It is wise to remind that latter observation, in strict legal terms, applies irrespective of whether such an action for damages may succeed (or not) on the substance. According to a recent Commission’s proposal, sanctions adopted at European Union level might be enforced in the same Union (i.e., in the Member states) by means of procedural law tools established under mentioned art. 83 TFEU. Such a possibility, if it would pass the subsequent institutional proceedings, will further strengthen the interaction between the different areas of law (sanctions regimes and criminal procedural law) certainly providing for a more consistent and effective legal framework. However, it seems questionable if such a proposal might as such be referred also to restrictive measures with “purely” commercial/economic policy aims. On the other hand, same proposal raises issues related to the protection of corresponding procedural rights of individuals involved by the effects of the measures (confiscation, freezing of assets, other investigative tools, etc.) “instrumental” to the enforcement of relevant sanctions under art. 215 para. 2 TFEU. Again, the relevant decisions adopted by national authorities in accordance with relevant EU acts will remain subjected to judicial review, with a greater 45 See Chapter II.2, above. International Sanctions of the European Union 174 www.fsjeurostudies.eu possibility that the CJEU be involved e.g., under the reference for a preliminary ruling as a tool for “genuine” reading of the relevant EU legislation (art. 267 TFEU), whenever interpretative doubts around such instrumental measures might arise before same national judiciaries. ABSTRACT: The paper investigates how the effectiveness of the European Union’s action and its accountability are tackled in the field of international sanctions regimes. This is particularly meaningful for sanctions targeting individuals and private companies, considering the negative outcomes that international sanctions have, sometimes even just indirectly, on both. While, on the one hand, the Court of Justice of the EU has expanded the right to claim damages that individuals might suffer from sanctions, the enactment of more general regimes (such as the Global human rights sanctions regime) might have adverse effects on those individuals’ defense rights. In this context, the Commission is in search of solutions to provide the Union’s sanctions with full effectiveness also by means of criminal procedural law tools. KEYWORDS: International sanctions – Judicial Cooperation on criminal law – noncontractual liability – Global Human Rights Sanctions Regime.