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Viktor Yanukovych is a former President of Ukraine who has courted Russia for years. Hosni Mubarak is a former Egyptian president who has courted the US for years.
For years, the EU has had a patchy track record of enforcing and defending the fines it imposed on leaders, businessmen and corporations for all sorts of wrongdoing. From 2008 to 2015, for example, the EU lost about two-thirds of legal challenges to its sanctions, it says a study demanded by the European Parliament.
The reasons are varied. In 2008, EU judges ruled they have jurisdiction over sanctions, meaning people can now more easily challenge them in court. This places the penalties in a different category from US sanctions, which enjoy better legal protection under a national safeguard clause. And while the EU drafts and approves its sanctions, it’s up to national courts and governments to actually implement them – no safe bet.
“The US has a lot more flexibility because the US doesn’t have that kind of judicial review,” said Dr. Clara Portela, Sanctions Expert at the Faculty of Law at the University of Valencia in Spain and author of the study for the European Parliament.
While those on the issue say the EU has fared much better in recent years – its case record appears to have improved in 2015, 2016 and beyond, according to multiple sources – the broader trend could always be Still predicting challenges as Western allies try to starve Moscow of the money and support it needs to continue its war in Ukraine. The EU, in coordination with the US and UK, has imposed unprecedented sanctions aimed at cutting off much of Russia’s economy from the continent and banning many of Russia’s top industrialists from Europe’s financial systems.
Of course, that only works if the sanctions hold up.
There are a few reasons to expect this. EU officials have learned from the court losses and are designing other sanctions in response. Also, officials are optimistic that Russia’s current violations of international law are so blatant that the sanctions will stand up to legal scrutiny. In addition, there is currently considerable public pressure on individual governments to actually enforce the penalties.
“Most of them will withstand judicial review,” predicts Hannah Neumann, a German MEP from the Green Party, who is closely following the EU’s sanctions work. “The bigger problem I see right now is how do we actually implement the sanctions in the member states.”
A decade of litigation
Before Russia’s February 24 invasion, EU officials routinely used fear of losing in court to dismiss appeals by activists and Russian opposition figures to sanction the oligarchs surrounding Vladimir Putin.
The few figures available show what was behind these fears.
The 2008 European Court of Justice ruling that it had jurisdiction over EU sanctions was followed by years of difficulties enforcing those sanctions.
Not only has the EU lost a significant number of sanctions cases in court over the next decade, the courts have also been increasingly inundated with these challenges. According to the study presented to the European Parliament, until 2017 sanctions cases were the court’s second most frequent topic, edging out competition cases.
However, things started to change around 2015, argue officials who have worked on the EU’s recent sanctions packages.
The numbers support this claim.
In 2016, Paul Williams, the head of multilateral policy at the UK Foreign Office, offered some details during a parliamentary hearing in the UK.
The previous year, Williams calledthe EU had won twice as many sanctions cases as it had lost – 30 versus 15. It was quite a change, he noted, from “a few years ago” when the EU “lost significantly more cases than it won. ”
The trend continued in 2016, accordingly a study by the European Parliament.
In essence, the EU staff learned how to design sanctions to better withstand legal scrutiny. Prior to 2008, sanctions were built primarily on evidence from intelligence agencies – including those in the US – that could not be disclosed in court without uncovering classified sources.
Now EU officials are trying to invent sanctions using open-source information that can be used in court.
“Over time, they learned how to improve the evidence packages they put together,” said Portela, a sanctions expert at the University of Valencia.
This change helped reverse the legal fate of the EU. An EU diplomat said the bloc’s court record looks much more promising when one counts the past few years.
Using that time frame – from 2010 to April 2021 – the official estimated that the EU won 177 sanctions cases against 122 losses.
The Council of the EU, which imposes the sanctions and represents the EU in court, has not responded to requests to confirm or deny the figures.
Take the money and run
However, there are areas where the EU continues to stumble.
Attempts to freeze assets after sanctions are imposed — a common punishment that the EU has used to punish people in Tunisia, Egypt and Ukraine for misconduct – is one area that stands out.
Portela said the issue had “proven to be extremely problematic” for the EU.
After the EU imposed these sanctions, local officials often made requests to have assets confiscated, but their requests failed to provide evidence that the assets had been misappropriated.
In general, when EU-sanctioned despots or officials are forced out of power and their assets frozen, their government officials have often failed to provide the EU with a legal basis for maintaining the sanctions, Portela said.
It can even be difficult to actually identify a person’s wealth, as Neumann, the German Green MEP, noted. She highlighted a recent example of a yacht in Germany. Everyone knows it’s owned by a Russian oligarch – but not officially on paper.
These problems have been acute in previous EU attempts to help fight corruption in Ukraine. The bloc targeted a number of high-profile Ukrainian figures who face criminal charges for misusing public funds. In 28 out of 32 court cases related to these sanctions, the EU court finally overturned the sanctions. accordingly a 2020 paper from the College of Europe in Bruges.
These included Yanukovych, Ukraine’s ousted, pro-Russian president, and his son. The EU hit them with asset freezes for allegedly embezzling Ukrainian state funds, but the penalties were eventually lifted.
In its judgment, the court called the EU had “failed to show that the rights” of Yanukovych and his son “were respected in the criminal proceedings”.
Still an EU spokesman calledYanukovych and his son “remain subject to EU restrictive measures based on legal acts adopted in 2021”.
The asset freeze issue does not extend to every situation. The 2020 College of Europe paper noted that only one case of similar sanctions against Russia was lifted.
While EU sanctions hold up in court, recent cases have exposed ongoing struggles to implement them.
In 2020, Spanish media reported that the country’s transport minister had secretly met in Spain with a senior Venezuelan official who was denied entry to the EU – a possible violation of the sanctions. But the European Parliament acknowledged that there was not much the EU could do. It was up to Spain to make the call.
The European Commission “has stated that it is for the Spanish Government to decide whether Mr Ábalos has breached the sanctions regime”, a Spanish MP complained in a written request.
The same enforcement framework will apply to recent sanctions against Russia, which affect a number of oligarchs with extensive financial operations across the continent, as well as scores of senior Russian officials.
While cases like that in Spain may fall under the exceptions implied by the sanctions – for example allowing a blacklisted person to enter Europe to negotiate – in other situations the EU may have more power.
According to legal experts, those powers apply to sanctions that clearly concern the EU’s single market – the harmonized rules and abolished trade barriers that allow goods and services to move easily across the continent. In these cases, the European Commission, the EU’s executive branch, can take countries to court in so-called “infringement proceedings” and try to force local officials to enforce the bloc’s sanctions.
However, the commission never took this step, a commission official confirmed.
Often this is simply because it is left to national prosecutors, who have the primary responsibility for combating sanctions against mockers. But sometimes, argued one diplomat, there is a risk that the commission will hold back because “it is necessary to avoid revealing divisions”.
In fact, European unity has been of paramount importance to officials ever since Russia poured its troops into Ukraine.
In four rounds of sanctions packages, EU members moved with zeal as typical disagreements eroded in a matter of days. However, this unity is beginning to show its limits as the EU considers its next round of sanctions.
These cracks are being revealed as officials debate a fundamental question: Even if these sanctions survive legal battles and are effectively enforced, will they actually stop Russia’s war?
According to historians Nicholas Mulder, in the 20th century, sanctions have prevented war in only three out of 19 cases.
He compared the current wave of sanctions against Russia to the measures the League of Nations imposed on Mussolini’s Italy, then the world’s seventh largest economy, in 1935 when it invaded Ethiopia.
“These measures failed to hobble the invader and save the defenders,” he wrote.
https://www.politico.eu/article/eu-russia-sanctions-challenge-court-battles-enforcement/?utm_source=RSS_Feed&utm_medium=RSS&utm_campaign=RSS_Syndication Disputes and Enforcement – POLITICO