CYIL vol. 14 (2023)

PETER MATUŠKA – NIKOLAS SABJÁN CYIL 14 (2023) (EC). 22 By virtue of Article 24 TEU, any decision taken under the CFSP requires unanimity. 23 Consequently, at the first stage, the decision to introduce restrictive measures is taken on the basis of consensus. The link between Article 21 TEU and 29 TEU has been challenged before General Court (GC) in numerous cases. For the purposes of this article, it is sufficient to mention the Tomana case 24 in which the applicants questioned the competence of Council to use CFSP in order to impose a freezing of funds or a travel ban on individuals simply on the basis that they are alleged to have been involved in the past in crimes or serious misconduct. 25 However, the GC stated that it is clear from a reading of Article 21 TEU in conjunction with Article 29 TEU … that the adoption of measures intended to advance, in the rest of the world … the rule of law, the universality and indivisibility of human rights and fundamental freedoms, may be the subject of a decision based on Article 29 TEU . 26 The absence of a link between the goals of CFSP and sanctions was also questioned in Yanukovich case 27 where the applicant argued that it had not been proved that the he had undermined democracy, the rule of law, or human rights in Ukraine, therefore there is lack of compatibility of sanctions with goals of CFSP. However, the Court took an extensive approach and confirmed that the objectives of CFSP enshrined in Article 21(2)(b) could be a CFSP objective. 28 One specific feature of EU sanctions concerns the temporal scope, as they are normally taken, for a period of six months and are subject to regular review to assess their effectiveness. Another specificity of EU sanction is that there is no intention to produce definitive legal effects. The goal is to constitute temporary precautionary and preventive measures. Hence, it means that, for example, in cases where the right to property is affected, restrictive measures are not supposed to deprive the persons concerned of their property. 29 As the CJEU stated in Yusef v Commission : ‘ The validity of such measures thus always depends on whether the factual and legal circumstances which led to their adoption continue to apply and on the need to persist with them in order to achieve their aims ’. 30 22 Restrictive measures may include: prohibitions on the export of arms and related equipment; restrictions on admission (visa/travel bans); economic measures such as restrictions on imports and exports; freezing of funds and economic resources owned by targeted individuals or entities. 23 There are also some discussions whether system of Qualify Majority Voting is more suitable to enhance flexibility and quick reactivity. See: WESSEL, R., A., and SZÉP, V., ‘The implementation of Article 31 of the Treaty on European Union and the use of Qualified Majority Voting Towards a more effective Common Foreign and Security Policy?’ (November 2022) . 24 Case T-190/12, Tomana and other v Council and Commission [2015] ECLI:EU:T:2015:222. 25 Case T-190/12, Tomana and other v Council and Commission [2015] ECLI:EU:T:2015:222 para. 90. 26 Ibid, para 93. See also: Lonardo (n 19) 592-593. 27 Case T-348/14 Yanukovych v Council [2016] ECLI:EU:T:2016:508. 28 Lonardo (n 19) 593-594. Moreover, as stated by the Court, There is a wider margin of discretion under the CFSP as it is a complex area. See: Case C-72/15 Rosneft Oil Company [2017] ECLI:EU:C:2017:236, paras. 88 and 132. 29 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat v Council [2008] ECLI:EU:C:2008:461, para 358. 30 Case T-306/10 Yusef v Commission [2014] ECLI:EU:T:2014:141, para 62.

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