Teisė ISSN 1392-1274 eISSN 2424-6050

2024, Vol. 130, pp. 44–54 DOI: https://doi.org/10.15388/Teise.2024.130.4

Challenges of the Common Foreign and Security Policy of the European Union after Russia-Ukraine War

Marita Gorgiladze
ORCID i-D: https://orcid.org/0009-0005-5355-2321
PhD student
Mykolas Romeris University
Institute of International and European Union Law
Ateities g. 20, Vilnius, 08303
E-mail: magorgiladze1@stud.mruni.eu

Challenges of the Common Foreign and Security Policy of the European Union after Russia-Ukraine War

Marita Gorgiladze
(Mykolas Romeris University (Lithuania))

Summary. The outbreak of the Russia-Ukraine war marked a geopolitical awakening for the EU. It prompted a reevaluation of EU foreign and security policies, revealing shortcomings in direction and cohesion. The EU reacted to Russia‘s war of aggression against Ukraine, which began on February 24, 2022, by imposing severe and unprecedented sanctions against it. The economic penalties are intended to hold Russia accountable for its conduct and to successfully obstruct Russian efforts to prolong the attack. Those who support, finance, carry out, or who gain from actions that undermine Ukraine‘s territorial integrity, sovereignty, or independence is the subject of individual sanctions.
The CFSP, governed by the Treaty on European Union, is primarily enforced through Council decisions, with Article 29 being a key provision used for adopting foreign policy positions and imposing sanctions. However, the legal nature of CFSP decisions, often considered „soft law,“ presents challenges in their implementation and enforcement. Additionally, the paper discusses the procedural aspects of adopting restrictive measures, highlighting the complexities involved in unanimity among Member States and the subsequent enforcement at the national level.
Judicial review of CFSP decisions, particularly in the context of sanctions, is explored through case analyses. The paper examines recent court cases related to CFSP decisions, including challenges to sanctions imposed on individuals and entities. The analysis underscores the difficulties courts face in balancing CFSP objectives with fundamental rights, particularly regarding media regulation and freedom of expression.
The paper concludes by emphasizing the need for a more unified and effective CFSP framework, especially in the face of evolving geopolitical challenges. It highlights the importance of addressing the shortcomings in CFSP decision-making processes and ensuring a balanced approach to judicial review to uphold the rule of law and fundamental rights while enhancing the EU‘s external actions‘ legitimacy and efficacy.
Keywords: CFSP, sanctions, CJEU, Russia-Ukraine war.

Europos Sąjungos bendrosios užsienio ir saugumo politikos iššūkiai po Rusijos ir Ukrainos karo

Marita Gorgiladze
(Mykolo Romerio universitetas (Lietuva))

Santrauka. Prasidėjęs Rusijos ir Ukrainos karas tapo geopolitiniu ES pabudimu. Jis paskatino iš naujo įvertinti ES užsienio ir saugumo politiką, atskleidė krypties ir sanglaudos trūkumus. Į 2022 m. vasario 24 d. prasidėjusį Rusijos agresijos karą prieš Ukrainą ES reagavo taikydama jai griežtas ir precedento neturinčias sankcijas. Ekonominėmis sankcijomis siekiama priversti Rusiją atsakyti už savo elgesį ir sėkmingai trukdyti Rusijos pastangas tęsti puolimą. Asmenims, kurie remia, finansuoja, vykdo ar pelnosi iš veiksmų, kuriais kenkiama Ukrainos teritoriniam vientisumui, suverenitetui ar nepriklausomybei, taikomos individualios sankcijos.
Bendroji užsienio ir saugumo politika (BUSP), reglamentuojama Europos Sąjungos sutartimi, pirmiausia įgyvendinama Tarybos sprendimais, o remiantis jos 29 straipsniu priimamos užsienio politikos pozicijos ir nustatomos sankcijos. Tačiau dėl teisinio BUSP sprendimų, kurie dažnai laikomi „negriežtąja teise“, pobūdžio kyla sunkumų juos įgyvendinant ir vykdant. Be to, straipsnyje aptariami procedūriniai ribojamųjų priemonių ėmimosi aspektai, pabrėžiant sudėtingus valstybių narių vienbalsiškumo ir vėlesnio vykdymo nacionaliniu lygmeniu klausimus.
Teismų atliekama BUSP sprendimų teisminė kontrolė, ypač sankcijų kontekste, nagrinėjama analizuojant bylas. Straipsnyje nagrinėjamos naujausios teismų bylos, susijusios su BUSP sprendimais, įskaitant sankcijų, taikomų fiziniams ir juridiniams asmenims, ginčijimą. Analizėje pabrėžiama, su kokiais sunkumais teismai susiduria derindami BUSP tikslus ir pagrindines teises, ypač susijusias su žiniasklaidos reguliavimu ir saviraiškos laisve.
Straipsnio pabaigoje pabrėžiama, kad reikia vieningesnės ir veiksmingesnės BUSP sistemos, ypač atsižvelgiant į besikeičiančius geopolitinius iššūkius. Reikia pažymėti, kad svarbu šalinti BUSP sprendimų priėmimo procesų trūkumus ir užtikrinti suderintą požiūrį į teisminę peržiūrą, kad būtų laikomasi teisinės valstybės principo ir pagrindinių teisių, kartu didinant ES išorės veiksmų teisėtumą ir veiksmingumą.
Pagrindiniai žodžiai: Bendroji užsienio ir saugumo politika, sankcijos, ESTT, Rusijos ir Ukrainos karas.

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Received: 14/03/2024. Accepted: 19/03/2024
Copyright © 2024 Marita Gorgiladze. Published by Vilnius University Press
This is an Open Access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.

Introduction

The European Union was founded on three pillars: the European Communities, the Common Foreign and Security Policy (CFSP), and cooperation in the area of justice and home affairs (JHI) (Sokolska, 2023, p. 1). The CFSP is one of the most complicated and challenging topics since it frequently involves Member States’ most sensitive concerns and is one on which it is difficult to come to an agreement. If taking into consideration the historical setting in which European cooperation first evolved, you could say that the CFSP is the result of a natural progression. A single foreign, security, and military policy framework should be constructed to reduce tensions between Member States if the EU project is to be viewed as a peace project in a continent that has undergone numerous conflicts (Khosla, 2019, p. 11). Following that, Europe started to consider a common future. Sanctions are one of the most frequently used tools of CFSP, especially after Russia-Ukraine war when unprecedented amounts of sanctions were imposed on Russia, and Belarus, it became very interesting to follow and analyze the legal background of those sanctions and observe how the European Court of Justice rules on CFSP and sanctions.

1. CFSPs’ Legal Nature

What has changed, and what challenges did the European Union encounter following Russia’s war against Ukraine? The most important was Europe’s geopolitical awakening. It is very important to analyze what is the main priority of the European Union’s 2023 foreign policy. First and the top priority is the war in Ukraine, EU support for Ukraine, EU opposition to Russia, and dealing with the global impact of Russia’s war. To oppose Russia one of the main tools which the EU uses is sanctions. Responding to the consequences and challenges brought on by sanctions can be very challenging as well.

In examining how sanctions are implemented, the CFSP’s legal foundation is a key factor. The only area of policy that is governed by the Treaty of European Union rather than the Treaty on the Functioning of the European Union is the Common, Foreign, Security and Defence Policy of the European Union. The reason is that some Member States wanted to emphasize the uniqueness of the CFSP and the standards created in that area of policy. Some CFSP norms fall under the category of “soft law,” and are expected to be followed even if the European Court of Justice lacks jurisdiction over the matter (Wessel, 2015, p. 16). The Common Foreign, Security, and Defense Policy of the EU was incorporated into the Treaty thirty years ago, but it continues to face “specific rules and procedures” that appear to hinder its efficacy. It is important to note that, in terms of the most frequently used legal bases, 47% of all CFSP decisions are solely based on Article 29 of the Treaty on the European Union, which grants the Union general authority to adopt foreign policy positions but is actually most often used to impose sanctions. This suggests that the Union’s foreign policy sanctions are by far the most frequently used tools. Article 31(2) TEU, which permits the Union to adopt decisions to execute previously approved decisions, is used in conjunction with Article 29 TEU (around 25% of its application is based only on this provision). Once more, nearly all of these rulings alter the scope or duration of existing sanction regimes (Wessel et al., 2021, p. 375). Article 29 of the Treaty on the European Union is the general framework regarding the adaptation of decisions by the Council. The Council must make decisions that outline the Union’s strategy for a specific issue of a geographic or thematic nature. Member States must make sure that their domestic policies align with those of the Union. Article 29 allows the Council of the European Union to adopt sanctions, despite the fact that sanctions, restrictive measures, or even CFSP are not mentioned directly in the article. Also, especially interesting and important is Article 28, which allows the Council to adopt decisions about operational actions required by international situations. The Council shall adopt the required decisions where the circumstances on the international stage necessitate operational action by the Union. They must specify the goals, boundaries, and tools that will be made available to the Union, potential durations, and requirements for their implementation. The Council must evaluate the guiding principles and goals of a decision and make any required judgments if a change in circumstances materially affects a question that is the subject of that decision (TEU article 28). Additionally, the Commission refers to Article 33 when making decisions relating to the CFSP. According to Article 33, the Council may select a special representative with a mandate who will function under the high representative’s supervision (TEU article 33).

The CFSP is explicitly mentioned as an EU competence in Article 2(4) TFEU. In accordance with the provisions of the Treaty on the European Union, the Union shall have the authority to establish and implement a common foreign and security policy, including the gradual formulation of a common defense policy (TFEU, Article 2(4)). Article 215 TFEU allows the council to adopt of restrictive measures against natural or legal persons and groups or non-state entities. However, these measures should be adopted under Article 19 TEU, and this will ensure that decisions are applied uniformly in all Member States. One of the most used restrictive measures is sanctions. The EU can adopt its own i.e., autonomous sections or implement United Nations Security Council resolutions. All decisions should be made in accordance with the objectives of the CFSP under Article 21 TEU. This means that sanctions should be consistent with CFSP objectives underlined under Article 21 TEU. Article 37 TEU and Article 217, 218 TFEU regarding international agreements with third countries or international organizations can be used in CFSP. The necessity for a legislative framework for the CFSP and sanctions became even more obvious after February 2022, when the number of measures applied reached historic levels.

CFSP standards can be simply classified as “soft law.” The European Community was obviously abolished by the Lisbon Treaty, and all areas of policy are now a part of the EU. CFSP norms are intertwined with other norms and cannot be seen in isolation. Another misconception is the CFSP procedural requirements, which are frequently referred to as “non-binding.” Even while they do occasionally grant the Member States discretion, the majority of requirements are highly specific and precise and would therefore be considered “imperative legal acts.” According to Article 32 of the Treaty on European Union, which contains the real procedural requirements and hardly leaves any room for the Member States’ discretion, the systematic collaboration mentioned in the list of CFSP measures in Article 25 TEU has to be implemented. Article 28(2) TEU can be used to conclude the mandatory nature of CFSP Decisions. CFSP Resolutions once taken, restrict Member States’ freedom to implement their own policies. Member States are not permitted to take stances or take other actions that are against the Decisions. They have committed themselves to modify their national policies in accordance with the achieved Decisions. (Wessel, 2015, p. 16).

2. Judicial Review, Judicial Challenges in CFSP Decisions: Case Analysis

2.1. Challenges of CFSP and procedure of adopting restrictive measures

How the CFSP decisions will be reflected in the courts is a critical question. The EU’s CFSP was envisaged as an area unsuitable for comprehensive judicial scrutiny by the European Union’s Court of Justice. The Lisbon Treaty grants the Court limited jurisdiction, which recent case law has broadly interpreted. The entrance into force of the Lisbon Treaty in 2009 also reconsidered the terms under which the reformed EU’s foreign policy was developed. The new constitutional arrangements repositioned CFSP within the Union’s architecture and added some exceptions to the Court of Justice’s lack of authority. In this context, the subject of the function of judicial review in the field has been raised with increasing frequency and intensity in recent years. The approach of primary law to the Court’s jurisdiction over CFSP proceedings exhibits two threads of distinctiveness and integration. Recent case law indicates that the Court of Justice has CFSP jurisdiction in two different situations. The first context is procedural and concerns the compatibility of international agreements on CFSP issues with the fundamental norms governing the negotiation and conclusion of international accords. The second context is more substantive and concerns specific actions taken by EU bodies in connection with CSDP missions and operations. under deciding how to approach jurisdiction under CFSP, case law provides decisions that vary greatly in terms of faithfulness to the spirit of the CFSP exclusion (Koutrakos, 2017, p. 1). As this research shows, the legal relationship between the CFSP and the court is a pretty complex and complicated problem. Under the current constitutional arrangements, CFSP measures are covered by EU law on judicial protection and fundamental human rights; nonetheless, the question of enforcement arises in circumstances where the Court lacks jurisdiction under Article 24(1) paragraph 2 TEU and Article 275 TFEU.

Sanctions are the CFSP instrument that is most frequently used. There have been more sanctions than ever before following the Russia-Ukraine war. The 11th sanctions package has been enacted by the European Union since the start of the conflict in Ukraine. The first package’s goal was different from that of the later ones. The initial package’s goal was to discourage Russia from launching the war; afterward, packages sought to persuade Russia to end the war. Restrictive measures are laid down in Common Foreign and Security Policy (CFSP) Council decisions. A proposal is made by the High Representative of the Union for Foreign Affairs and Security Policy (HR). The relevant Council preparatory bodies then study and discuss the proposed measures: the Council working party responsible for the geographical region to which the targeted country belongs, the Working Party of Foreign Relations Counsellors Working Party, if required, the Political and Security Committee, the Committee of Permanent Representatives. The Council unanimously approves the decision. If the Council Decision contains asset freezing and/or other economic and/or financial sanctions, those measures must be enforced through a Council regulation. The High Representative and the Commission make a joint proposal for a Council regulation in accordance with the CFSP Council’s decision. RELEX evaluates the joint proposal before sending it to COREPER and the Council for approval. The Council then notifies the European Parliament that the Council regulation has been adopted. The regulation specifies the measures’ exact scope as well as the specifics of how they will be implemented. The rule is enforceable against any EU citizen or entity (economic operators, public bodies, etc.) as a general application legal act. Upon publication in the European Union’s Official Journal, the Council resolution becomes enforceable. In order for the CFSP Council decision and the Council rule to take effect simultaneously, they must be accepted jointly. This is especially important when there is an asset freeze. The Member States will put into effect any measures that were solely stipulated in the CFSP resolution, such as travel bans or arms embargos, and the Commission will check it to make sure that they did so correctly and on schedule. The following individuals and organizations (listed people and entities) are informed of the actions that have been taken against them: if their address is known, individually by letter through the use of a notice published by the Council in the “C” Series of the European Union’s Official Journal. To make sure they continue to help achieve their stated goals, any restriction measures in place are continually reviewed. There is no end date for the restrictive measures put in place to enforce UN Security Council resolutions. When the UN makes a decision to that effect, they are immediately changed or removed. The UN’s provisions are also ad infinitum. At least once every 12 months, EU autonomous provisions are evaluated. The duration of Council decisions imposing EU autonomous restrictive measures is typically one year, although the duration of the accompanying Council rules is indefinite. The Council will consider the restrictive measures before deciding whether to extend such a Council resolution. The Council may at any time decide to modify, extend, or temporarily suspend them as circumstances warrant.

The stages of adopting decisions on sanctions are as follows, to put it simply: a proposal is made by the High Representative. The proposed measures are examined and debated by the relevant Council preparatory bodies. The legal act is approved by Coroper II. The decision is then approved by the Council. The decision is made public in the European Union’s official journal. The procedure for adopting the regulation is different. The HR and the Commission offer a joint proposal for a Council Regulation. The proposed measures are examined and debated by the relevant Council preparatory bodies. Coreper II agrees with the legal act. The Regulation is made public in the European Union’s official journal. The European Parliament is then informed by the Council. Both the Council ecision and the Council Regulation are often enacted simultaneously and come into effect the same day. The Member States are obliged to implement them. The Commission will ensure that the Regulations are properly and punctually implemented by the Member States. They must be enforced by citizens and operators throughout the EU. They are reviewed on a regular basis. Depending on how the situation evolves, the Council may decide to amend, prolong, or lift them at any time. Of course, there are certain problems and shortcomings of this method.

Sanctions are complicated tools and the procedure of adopting them is having challenges. Unanimity is required for the sanction to be adopted, which is frequently a challenging problem because there is frequently one member state that disagrees with the decision. For example, as part of its sixth set of sanctions against Russia, the European Commission targeted Patriarch Kirill, head of the Russian Orthodox Church. Patriarch Kirill was exempted from EU sanctions as a result of Hungary’s objection (Liboreiro et al., 2022). Another challenge is implementation, and also enforcement. Although sanctions are decided upon at the EU level, enforcement rests with the individual Member Sstates. Unfortunately, they use a variety of fragmented national bodies and varying legal procedures to punish transgressions inequitably. The EU should work to make enforcing sanctions a matter of prestige, firmly respond to any and all infractions, and strengthen the legislative framework for collaboration between authorities and responsible parties. The new sanctions-related legal acts that are being created in Brussels should include these changes. The issue of the implementation and enforcement of uniform regulations on sanctions violations throughout the EU cannot be adequately addressed by only making minor adjustments to the information flows between Member States. The public implementation of sanctions must become a matter of prestige and a shared cause for both responsible actors and authorities. This calls for a massive awareness-raising campaign (Olsen et al., 2022, p. 5). Additionally, the challenge for the sanctions imposed by the European Union is that similar sanctions are not adopted by the UN Security Council. The effectiveness of sanctions is hampered by the fact that other major countries do not use the same sanctions. Besides, sustainability could also be a problem regarding sanctions.

2.2. Court cases related to CFSP

Following the imposition of sanctions, judicial decisions have also become a significant challenge. More than one out of every ten lawsuits made to the General Court of the European Union last year in relation to Russia’s war in Ukraine focused on EU sanctions. Certainly, the large number of cases deserves attention. Not just from a quantitative point of view, but also from a content point of view, the analysis of court decisions is interesting and important. After Russia attacked Ukraine militarily on February 24, 2022, the Council of the European Union enacted further sanctions against Russia on March 1 of that year. The legal grounds for these sanctions were Decision 2022/351 and Regulation 2022/350. One of the measures taken by the EU was suspending Russian state-owned outlets broadcasting. These activities have as their goal the temporary outlawing of actions for that military assault’s promotion through specific Russian-controlled media. Therefore, it is forbidden for any operator with a presence in the European Union to transmit any content created by any of the organizations, bodies, or individuals listed in the annexes to the aforementioned acts. On the list of organizations covered by the contested measures was the applicant, RT France. The applicant is a French simplified joint stock company with a single shareholder that publishes thematic channels as its primary business. The ANO “TV Novosti” association (hereinafter “TV Novosti”), an autonomous non-profit organization of the Russian Federation, without share capital, with its registered office in Moscow (Russia), holds all of the applicant’s share capital. TV Novosti receives almost all of its funding from the Russian state budget. Based on Article 263 TFEU, the applicant, RT France, requested the annulment of the Council Decision. The following issues were raised by the applicant: the competence of the Council to adopt the contested acts, alleging disregard of the rights of the defense, alleging a breach of the freedom of expression and information, alleging a breach of the freedom to conduct a business, and alleging a breach of the principle of non-discrimination on grounds of nationality. The appeal was dismissed. The court had an interesting argument about all of the grounds. Of course, a critical analysis of this judgment is more interesting. To begin with the competence of the Council. It could be argued that the court’s analysis and reasoning, in this case, are completely different from those used in other proceedings. By prohibiting media outlets from operating throughout the European Union, the Council is interfering in a matter of media regulation that is often left to the discretion of the Member States. Unquestionably, Member States alone are responsible for influencing the media environment; this is part of their cultural competence, and the European Court of Justice has repeatedly reaffirmed this.

The right to freedom of expression is protected under Article 11 of the EU Charter of Fundamental Rights. All forms of speech are protected by the freedom of expression, even including disinformation and some type of propaganda, if it’s not explicitly identified as illegal by state legislation. All media including RT France and Sputnik are entitled to be protected under the provision of Article 11. However, there are arguments that demonstrate that RT France and Sputnik are directly attached, financed, and controlled by the government of Russia. Therefore, shouldn’t we classify them as media and grant them the ability to be protected under Article 11? If a business is controlled and connected to a foreign state, it should not be able to seek protection under the EU Charter of Fundamental Rights. It is directly stated in the preamble: The exercise of these rights includes obligations and responsibilities toward other people, the human race, and upcoming generations. Propaganda comes in a variety of forms, according to the OSCE. It distinguishes between two types of propaganda used nowadays. The first is referred to as “propaganda for war and hatred,” and it calls for taking necessary legal action and steps in accordance with international human rights legislation. Propaganda’s second form combines all of its guises. Although it might go against journalistic ethics, it may not necessarily be against international law (OSCE, 2015, p. 60). The following are highlighted in the recommendations: The root causes of propaganda that incites conflict and hatred should be addressed through a wide range of policy initiatives, for instance in the fields of international and intercultural dialogue, such as the dialogue between journalists and intellectuals, and promoting media education and democracies based on peace, freedom of expression, pluralism, and diversity. People should be encouraged to express a variety of opinions and facts that support constructive discussion and debate. Positive traditional values that are in line with widely accepted human rights norms and standards can also help to prevent incitement to hatred and hostility. Therefore, banning media is not even evaluated or analyzed because it is against media pluralism. However, it is crucial to note that this recommendation was formulated in 2015 rather than in 2022 when Russia officially declared full-scale war on Ukraine. As for propaganda and hatred, even if it might not be deemed illegal in all states, the International Covenant on Civil and Political Rights holds that it is unlawful and requires legal action along with necessary steps in accordance with international human rights law.

It is very interesting and important to discuss what the exact effect and influence of RT France and Sputnik was. In a normal situation, it should be evaluated if this effect was the same in every EU member state? Or maybe it is different in the Baltic States, Poland, and Eastern Europe compared to Spain or Ireland. Equally important is the scope of the regulation, which covers not only audiovisual media but social media as well. Sanctions against RT France and Sputnik were not adopted in Norway. The Norwegian Constitution provides a high level of protection for the right to free speech. The Norwegian Government has decided against imposing restrictions on the state-controlled media in Russia based on the constitutional analysis (Aagre, 2022). The fundamental rule that EU Member States cannot impose a broad obligation on internet intermediaries to monitor what individuals say online is outlined in Article 15 of the ECommerce Directive. It means any platform on the internet can make a decision about whom they want to allow broadcasting. This regulation could lead to the possible threat for open internet.

What is notable about the General Court’s reliance on NIT S.R.L. is that the Court utterly omits to disclose crucial elements from NIT S.R.L. that would critically undermine the General Court’s finding in RT France while ignoring the substantially distinct characteristics of NIT S.R.L. The Moldovan media regulator canceled a broadcaster’s broadcast license in NIT S.R.L. for “repeated” violations of the broadcasting code, including failing to maintain “balance, impartiality, and objectivity,” among other offenses (European Court of Human Rights, Case 28470/12).

The court relied on the argument that the ban is temporary and conditional, however, later the judgment measures were prolonged. While writing this article, RT France has been closed. RT France, the French arm of the Russian state broadcaster, will shut down after its French bank accounts were frozen over Moscow’s invasion of Ukraine, the channel’s director said. The same information can be found in other media sources (Kayali, 2023).

The decision made by the court is understandable due to the extraordinary and unprecedented situation in which it was made. However, the court should provide more information and analysis regarding freedom of expression and media pluralism. Also, it could be better to provide clear evidence and facts about the effect of RT France and Sputnik on society in different EU Member States. The regulation itself could be improved by including statistics on the proportion of war propaganda disseminated by these media outlets.

Another interesting court case is the Judgment of the General Court in Case T-212/22 Prigozhina v Council. The General Court annulled the restrictive measures imposed on Ms. Violetta Prigozhina, the mother of Mr. Yevgeniy Prigozhin, during Russia’s war against Ukraine. The applicant relies on five legal arguments in favour of the case. The following alleging was provided by the applicant: infringement of the obligation to state reasons, a lack of substantive legality, the existence of misuse of powers, and infringement of fundamental rights (The applicant says that the lack of accuracy in her listing reasons prevents her from effectively disputing them, The applicant believes that the restrictive limitations imposed on her are unreasonable since they prohibit the Council from achieving its goal) (The European Court of Justice, Case T-212/22). The Court said that the connection between Ms. Prigozhina and her son established at the time of the adoption of the contested acts is based solely on their family relationship and is therefore insufficient to justify her inclusion on the contested lists, even if the latter is accountable for actions undermining the territorial integrity, sovereignty, and independence of Ukraine. Unfortunately, the reasoning of the court is short and does not give possibilities for analyzing the situation further. One of the greatest issues of sanctions, in many circumstances, is their eventual revocation by the court. Perhaps the reason for this is often the lack of justification in legal documents when imposing sanctions. This may lead us to believe that developing a unified legal framework for sanctions is an essential step. Of course, after the war, the number of sanctioned individuals and businesses is so large that requesting justification for each individual is quite impossible. As a result, it should be highlighted once more that Europe is currently in an extraordinary and extreme situation. The effectiveness of sanctions and legislation, however, still has to be addressed.

Another interesting court case is the Judgment of the General Court in Case T-723/20, Prigozhin v Council. Given the circumstances in Libya, the General Court confirms the Council’s decision to impose restrictions on Russian businessman Yevgeniy Viktorovich Prigozhin. The Council of the European Union authorized restrictive measures against Mr. Yevgeniy Viktorovich Prigozhin, a Russian businessman with close ties to Wagner Group, which was engaged in military activities in that State, in October 2020, in response to grave human rights violations in Libya. In July 2021, the Decision was extended. These steps entail freezing the assets of anyone involved in or lending support to actions that endanger Libya’s peace, stability, or security. The General Court points out that the requirement that acts adopted by the institutions and bodies of the European Union give reasons necessitates that those acts do so in a manner that is explicit and unambiguous and that is appropriate to the measure in question and the context in which it was adopted. Regarding the admissibility of the evidence relied upon, the General Court observes that the evidence package upon which the decisions were made contained excerpts from the report of the United Nations Secretary-General as well as press articles from a variety of sources, including news agencies or media organizations, all of which are open to the public. Additionally, some of those news releases specify the sources for the remarks and images they used as evidence. In addition, the existence of the Wagner Group and its areas of engagement and operations, which include the Central African Republic, Ukraine, Syria, and Libya, are confirmed by the Panel of Experts‘ report on Libya. That report makes it apparent that Wagner Group has been in Libya since October 2018 and was initially dispatched there to offer technical assistance for the upkeep and repair of armored vehicles. The research also notes that there is little open-source information that can be independently verified on the group‘s organizational structure, operational tasks, and casualties. Regarding the alleged violation of the right to effective judicial protection and the right to a fair trial, the General Court observes that Mr. Prigozhin was informed of the initial listing decision and the documents in the evidence pack and was subsequently given the opportunity to submit comments that were reviewed by the Council. The same criteria that were used to justify the initial listing decision are used to support the decision to keep his name on the list. The General Court notes that any restrictive economic or financial measure entails, ex hypothesi, consequences affecting the right to property and the freedom to pursue an economic activity of the person or entity subject to that measure, resulting in harm to that person or entity, with regard to the alleged infringement of his right to property, his freedom to pursue a trade or profession, and his freedom of movement. While upholding fundamental rights is a need for the validity of EU laws, those rights also need to be considered in light of their role in society. The exercise of those rights may be restricted, provided that the restrictions are actually consistent with the public interest objectives pursued by the European Union and do not amount to an excessive and intolerable interference with the goal pursued, undermining the very nature of the rights guaranteed.

Conclusions

1. The Russia-Ukraine conflict has prompted a massive reevaluation of the European Union’s foreign and security policies, highlighting underlying flaws in direction and coherency. Responding to Russia’s aggression, the EU imposed unprecedented sanctions aimed at holding Russia accountable and obstructing its efforts to prolong the conflict. These penalties are aimed against persons and businesses implicated in actions that jeopardize Ukraine’s territorial integrity, sovereignty, or independence.

2. The Common Foreign and Security Policy (CFSP), which is defined by EU treaties, provides the legal framework for these initiatives. However, the “soft law” nature of CFSP rulings presents practical issues, particularly in terms of member-state unanimity and national enforcement. Judicial scrutiny of CFSP rulings, including punishments, has also gained traction, with courts attempting to strike a balance between CFSP aims and fundamental rights, particularly freedom of expression.

3. Recent court cases highlight the complexities of CFSP and the challenges in adopting and enforcing sanctions. For instance, the case involving RT France underscores the tension between media regulation and freedom of expression, particularly in times of conflict. While the EU’s actions are aimed at countering war propaganda, the effectiveness and legitimacy of such measures must be carefully evaluated.

4. The legal process for implementing sanctions is complicated by the need for unanimity and uneven implementation across Member States. The need for a more cohesive and effective CFSP structure is clear, particularly given the rising geopolitical difficulties. Improving decision-making processes and ensuring a balanced approach to judicial review are critical for upholding the rule of law and basic rights while also increasing the legitimacy and efficacy of the EU’s external operations. To summarize, addressing weaknesses in CFSP decision-making and enforcement processes is critical for navigating complicated geopolitical environments and maintaining regional peace and stability.

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Case Law

The European Court of justice, Case T-125/22, RT France v Council of the European Union [online]. Available at: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:62022TJ0125

The European Court of justice, Case T-212/22, Prigozhina v Council [online]. Available at: https://curia.europa.eu/juris/document/document.jsf?docid=273168&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=5253195

The European Court of justice, Case T-723/20, Yevgeniy Viktorovich Prigozhin v Council [online]. Available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=260177&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2545130

The European Court of justice, Judicial statistics (2022) [online]. Available at: https://curia.europa.eu/jcms/upload/docs/application/pdf/2023-03/cp230042en.pdf

European Court of Human Rights, 28470/12, NIT S.R.L. v. the Republic of Moldova [GC] [online]. Available at: https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22002-13629%22]}

Special Literature

OSCE (2015). Propaganda and Freedom of Media [online]. Available at: https://www.osce.org/files/f/documents/b/3/203926.pdf

Sokolska, I. (2023). The Maastricht and Amsterdam Treaties, Fact Sheets on the European Union [online]. Available at: https://www.europarl.europa.eu/ftu/pdf/en/FTU_1.1.3.pdf

Khosla, K. (2019). Is the European Union’s Common Foreign and security policy (CFSP) adequately designed to respond to current global challenges? [online]. Available at: https://ipr.blogs.ie.edu/files/2019/06/Is-the-European-Union%E2%80%99s-Common-Foreign-and-Security-Policy-CFSP-adequately-designed-to-respond-to-current-global-challenges.pdf

Wessel, R. A. (2015). Resisting Legal Acts Facts: Are CFSP norms as Soft as They Seem? [online]. Available at: https://www.utwente.nl/en/bms/pa/research/wessel/wessel111.pdf

Wessel, R. A., Anttila, E., Obenheimer, H., Ursu, A. (2021). The future of EU Foreign, Security and Defence Policy: Assessing legal options for improvement [online]. Available at: https://onlinelibrary.wiley.com/doi/epdf/10.1111/eulj.12405

Koutrakos, P. (2017). Judicial review in the EU’s common foreign and security policy [online]. Available at: https://www.cambridge.org/core/journals/international-and-comparative-law-quarterly/article/judicial-review-in-the-eus-common-foreign-and-security-policy/9570284E9D3285480CE2FC6006422B93

Council of the European Union (2023), Russia’s war of aggression against Ukraine: EU adopts 11th package of economic and individual sanctions [online]. Available at: https://www.consilium.europa.eu/en/press/press-releases/2023/06/23/russia-s-war-of-aggression-against-ukraine-eu-adopts-11th-package-of-economic-and-individual-sanctions/

Council of the European Union (2023), Adoption and review procedure for EU sanctions [online]. Available at: https://www.consilium.europa.eu/en/policies/sanctions/adoption-review-procedure/

Council of the European Union (2023), The EU sanctions process explained [online]. Available at: https://www.consilium.europa.eu/en/infographics/the-eu-sanctions-process-explained/

Liboreiro, J.; Koutsokosta, E.; Murray, Sh. (2022). Patriarch Kirill excluded from EU sanctions after Hungary’s objection [online]. Available at: https://www.euronews.com/my-europe/2022/06/02/patriarch-kirill-excluded-from-eu-sanctions-after-hungary-s-objection

Olsen, K. B., Kjeldsen, S. F. (2022). Strict and Uniform, improving EU sanctions Enforcement [online]. Available at: https://dgap.org/system/files/article_pdfs/DGAP-PolicyBrief-2022-29-EN_0.pdf

Aagre, A. IRIS 2022-5:1/5, [NO] SANCTIONS ON RT AND SPUTNIK NOT TO BE ADOPTED IN NORWAY [online]. Available at: https://merlin.obs.coe.int/article/9488

Kayali, L. (2023). RT France to shut down after accounts frozen [online]. Available at: https://www.politico.eu/article/rt-france-shuts-down-russia-accounts-frozen/