CYIL vol. 14 (2023)

CYIL 14 (2023) APPLICATION OF EU SANCTIONS IN MEMBER STATES – CASE OF THE SLOVAK REPUBLIC pursuant to Regulation 423/2007. 49 Particularly, in the case of Mohsen Afrasiabi and Others, 50 the Court held that ‘ The terms ‘knowingly’ and ‘intentionally’ 51 imply… firstly an element of knowledge and secondly an element of intent. ’ 52 This interpretation is rather extensive, however it is limited by the requirement to determine whether the subject knew or should have known that a certain action could violate sanctions. In other words, not every violation of sanctions could be defined as an intentional violation of sanction and the burden of proof lies with public authority instead of the entity violating or circumventing sanctions. However, contrary to this, the CJEU in the Bank Meli case took a different approach and shifted the burden of proof to private entity, though the Court dealt with the issue in the context of the Blocking Statute. 53 A more general instrument regarding the failure to implement sanctions by a Member State is the infringement proceeding. The EC may also initiate infringement proceedings in accordance with Article 258 TFEU against a Member State, should it fail to implement EU law. However, as of today, we are not aware of any such proceedings. Finally, we shall at least shortly mention a more radical and ambitious proposal to ensure a more effective implementation and enforcement of EU sanctions. Namely, some have argued that the institutional and legal framework should be altered by ensuring a more centralized organization, i.e., to create an EU sanctions authority. The proposals are essentially based on the Office of Foreign Assets Control (OFAC) of the US Department of Treasury which is responsible for the enforcement of sanctions in the USA. For instance, this European authority would be responsible for reviewing the exemptions from sanctions granted on national level. The logic behind the proposal is clear: it would create a more efficient and transparent system as opposed to the current one, which involves 27 different jurisdictions, each with its specific nuances and complexities. Nonetheless, it seems unlikely that such a proposal would be politically achievable. In our opinion, the most acceptable regime would be the so-called “hybrid regime”, where in some areas the EU itself will have competence to implement sanctions, e.g., general ban to import or export goods, but Member States will keep competences in other areas. 3. Slovakian Citizen on the EU Sanctions List – The Case of Mr. Hambalek Mr. Jozef Hambalek’s case became quite exceptional – at the time of writing this article, he remains the only EU citizen listed on the so-called Russian sanction list. His name appeared on the list in July 2022 and has stayed there ever since. The reasoning is based on the fact that he is the President of the Europe chapter of the nationalist motorcycle club Nightwolves MC based in Slovakia. He is also accused of training Nightwolves members for active combat 49 Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran [2007] OJ L 103. 50 Case C-72/11 Mohsen Afrasiabi and others [2011] EU:C:2011:874. 51 As defined in Regulation: Article 7(4) of Regulation No 423/2007 concerning restrictive measures against Iran must be interpreted as meaning that: the terms ‘knowingly’ and ‘intentionally’ imply cumulative requirements of knowledge and intent, which are met where the person participating in an activity having such an object or such an effect deliberately seeks that object or effect or is at least aware that his participation may have that object or that effect and he accepts that possibility. 52 Mohsen Afrasiabi and others (n 49) para. 66. 53 Case C124/20 Bank Meli v Telekom [2021] ECLI:EU:C:2021:1035.

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