CYIL vol. 14 (2023)

CYIL 14 (2023) APPLICATION OF EU SANCTIONS IN MEMBER STATES – CASE OF THE SLOVAK REPUBLIC terrorism, 15 cyber-sanctions, 16 sanctions against nuclear proliferation, or the “Magnitsky style” human rights sanctions. 17 EU restrictive measures may be imposed either by the implementation of United Nation Security Council (UNSC) sanctions, “mixed” sanctions (extension of UN SC sanctions) or on an autonomous basis, i.e., on the EU’s own initiative. 18 A specific category is the adoption of sanctions within association agreements or frameworks of cooperation with third countries, if the party to the agreement fails to respect a number of essential conditions of the agreement. The most well-known example is the sanctions based on the Cotonou agreement. 19 The said measures must be consistent with the objectives of the EU’s external action, as laid down in Article 21 TEU. 20 There is a two-step procedure when adopting EU restrictive measures. Under the first step, in line with the Article 29 TEU, the Council takes decisions to adopt, renew, or lift sanctions regimes by unanimity, on the basis of proposals from the High Representative of the Union for Foreign Affairs and Security Policy. Subsequently, the restrictive measures are either implemented by the Member States directly – this occurs with regard to travel bans which fall outside the EU’s exclusive legislative competence 21 – or sanctions are implemented by a further EU legislation (in this case, EU Regulation). For instance, the economic and financial aspects of such decisions (e.g., import/export restrictions and freezing of assets, etc.) fall under the latter (as these measures affect EU commercial policy) and as stated, are implemented by regulations adopted by the Council on the basis of Article 215 Treaty on the functioning of the European Union (TFEU) (qualified majority), upon a joint proposal by the High Representative and the European Commission 15 The EU recently added two individuals affiliated to ISIL and operating mainly in the Cabo Delgado region in Mozambique. EU fight against terrorism: one group and two individuals added to the EU sanctions list, Council of the EU Press release 24 April 2023 https://www.consilium.europa.eu/en/press/press-releases/2023/04/24/eu fight-against-terrorism-one-group-and-two-individuals-added-to-the-eu-sanctions-list/. 16 EEAS, ‘EU imposes first ever cyber sanctions to protect itself from cyber-attacks’ (EEAS, 30 July 2020) . 17 EU created the “European Union Global Human Rights Sanctions Regime” which allows to target individuals and entities for the gravest of human rights violations and abuses that are said to have extra-territorial effect, including genocide, torture and other cruel, inhuman or degrading treatment or punishment, without causing political upheaval. AL-NASSAR, H., and others, ‘Guilty Until Proven Innocent? The EU Global Human Rights Sanctions Regime’s Potential Reversal of the Burden of Proof’ (2022) 32 Security and Human Rights . 18 See EU Sanctions Map . 19 WOUTERS, J., and others, The Law of the EU External Relations: Cases, Materials, and Commentary on the EU as an International Legal Actor (3 rd edn, Oxford University Press 2021) pp. 214–219. 20 For a more detailed distinction between general EU competence to engage external action (part V TFEU) and to conduct CFSP (Article 24 TEU), see: LONARDO, L., ‘Common Foreign and Security Policy and the EU’s external action objectives: an analysis of Article 21 of the Treaty on the European Union’ (2018) 14 European Constitutional Law Review , 584. 21 It shall be pointed out that arms embargoes also fall under this category, albeit theoretically, these are part of EU’s competences. This conclusion is in line with Article 346 TFEU which implies that each Member State is fully responsible for the implementation of these measures. This is not entirely unproblematic because it may lead to decreased effectivity of such sanctions. See e.g.,: MEISSNER, K., L., and URBANSKI, K., ‘Feeble rules: one dual-use sanctions regime, multiple ways of implementation and application?’ (2022) 31(2) European Security .

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