CYIL vol. 14 (2023)

CYIL 14 (2023) APPLICATION OF EU SANCTIONS IN MEMBER STATES – CASE OF THE SLOVAK REPUBLIC enforcement itself is affected by the fact on whether there is one central authority or numerous entities responsible for each area individually. This factor influences the enforcement of sanctions. Secondly, the political climate in the Member State might be also relevant – the “motivation” to strictly enforce sanctions might be different in Member States. Thirdly, lack of resources (financial, human, etc.) also affects the enforcement. Lastly, legal hurdles or the impetus to protect domestic business could also be a factor. In any case, it is the competent authority in each Member State which has to assess whether there has been a breach of the relevant Council Decisions and Council Regulations adopted under Article 29 TEU or Article 215 TFEU respectively and to take appropriate measures. At the time of writing, the violation of Union restrictive measures is considered a criminal offence only in 12 Member States. In 13 Member States, the violation of these measures can amount to an administrative or a criminal offence. 40, 41 As we discussed above, financial sanctions, including the freezing of assets and the prohibition of providing loans and making payments to individuals and entities, are adopted at the EU level, although the implementation is the duty of Member States. Therefore, each state has its own system of procedures, penalties, and also possible exemptions. The lack of harmonization is causing numerous problems in practice, 42 especially in terms of different flexibility and speed of implementation. 43 In addition, there is also a threat of so-called forum shopping which is also well known in other areas, such as international investment law. The idea behind forum shopping is that an entity or individual is capable to choose the “best jurisdiction” to pursue its claim. The absence of harmonization across EU Member States could lead to situation where entity will deliberately conduct its operation in the Member State with weakest legal penalties for violations of sanctions. In the Slovakian legal system, the sanctions implementation is regulated in the Act on the Implementation of International Sanctions 289/2016 Coll. adopted in October 2016 (Sanction Act). 44 The Slovak Republic can impose sanctions from 66,400 € for individuals to 1,659,700 € for legal persons. 45 At the time of writing there is no specific provision in 40 EUROJUST, ‘Prosecution of sanctions (restrictive measures) violations in national jurisdictions: a comparative analysis’, (Hague, 2021), . 41 Most Member States have criminal penalties for sanctions violations. Some member states, namely Belgium, Germany, Italy, Lithuania, and Romania, have both administrative and criminal penalties, whereas Poland and Spain only administrative penalties. Note that Germany and Italy have administrative and criminal penalties for natural persons, but only administrative penalties for legal persons, as corporate criminal liability does not exist in these Member States. Francesco Giumelli and others, ‘United in Diversity? A Study on the Implementation of Sanctions in the European Union’, (2022) 10(1) Politics and Governance 40. 42 Ibid, 36–46. 43 In case of Slovakia, the absence of central authority responsible for the implementation is probably the main cause of the long process of implementation and moreover, it has a negative impact on the duration of the entire process. 44 Even though the Slovakian legislation uses the term “international sanctions”, this is meant as a generic term of any sanctions adopted on the international level. 45 Article 21 paragraph 1 of Sanctions Act: The offence is committed by a person who breaches the restriction order or prohibition arising from international sanctions, or does not comply with the reporting obligation pursuant to Art. 15 paragraph 1, or breaches the confidentiality obligation under Art. 20 paragraph 1, or violates the rights to the subject of intellectual property contrary to international sanctions or ordinance . Article 22 paragraph 1 states: An administrative offence is committed by a legal or natural person or entrepreneur that a) violates the restriction order

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