CYIL vol. 14 (2023)

PETER MATUŠKA – NIKOLAS SABJÁN CYIL 14 (2023) Member States have exclusive competence as regards the application of the restrictions at issue to their own nationals ’ 73 whereas the aspect of EU citizenship was basically not analysed. The EU also imposed asset freezes on Mr. Hambalek. This includes all types of property, including bank accounts. The asset freezes are based on the Regulation No 269/2014 with Annex I being gradually expanded, containing more than thousand natural persons (and legal persons as well). The right to property is clearly affected in such cases. The guarantee of property rights is, inter alia, enshrined in Article 1 of the Additional Protocol to the European Convention on Human Rights. States may not deprive any natural or legal person “of his possessions”. 74 Such “possessions” may include contractual rights having a pecuniary value. On the other hand, the CJEU recognized that this right is not absolute in the Bosphorus and Kadi I cases. Hence, the right to property and the right to carry out an economic activity can be limited pursuant to Article 52(1) of the Charter of Fundamental Rights. 75 According to the said article, the measure must fulfil three conditions: the limitation shall be “provided for by law”; the limitation must pursue an objective of general interest recognized by the EU; and lastly, the restriction of the right must be necessary and proportional in relation to the objective. 76 In this context, it shall be pointed out that individuals affected by sanctions have the right to initiate an action for damages, however only in the situation if the three conditions are met. 77 First, there must be a sufficiently serious breach of a rule of law which protects or grant rights on individuals. 78 Secondly, damage was caused and thirdly, it is possible to establish a link between the breach of the obligation by the Union institution and the damage of the injured party. 79 Furthermore, an individual listed on EU sanctions list can initiate proceeding before GC and ask for interim measures in support of a sanctions challenge. This legal tool had never been granted until the recent case of Mazepin v Council . 80 A lawsuit against the Council challenging the sanctions adopted against Nikita Mazepin was submitted in November 2022. By a separate document lodged at the Court Registry on 9 December 2022, the applicant brought the application for interim measures, in which he claims that the President of the General Court should order a suspension of contested measures. The key argument was that travel ban is threating to his racing career as a driver of Formula 1 and lengthy litigation to 73 Ibid , para 186. 74 The European Court of Human rights has consistently held bank deposits to constitute “property” in this sense. See e.g., : Raimondo v. Italy, App No. 12954/87 (ECHR, 22 February 1994); Luordo v Italy, App No. 32190/96 (ECHR, 17 July 2003); Ališić and Others v Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the Former Yugoslav Republic of Macedonia , App No. 60642/08 (ECHR, 16 July 2014) para. 80; Michael Bothe, ‘Compatibility and Legitimacy of Sanctions Regimes’ in Natalino Ronzitti (ed), Coercive Diplomacy, Sanctions and International Law (Brill 2016), p. 41. 75 Article 52(1) of the Charter provides that: “ any limitation on the exercise of the rights and freedoms recognized by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet the objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others .” 76 Wouters (n 17), pp. 193–203. 77 See Case T- 47/ 03, Jose Maria Sison v Council [2007] EU:T:2007:207, where the required conditions were not fulfilled and therefore, the General Court rejected the application for damages. 78 Wouters (n 17), p. 203. 79 Ibid. 80 Case T 743/22 R, Mazepin v Council , Order of the President of the General Court 1 March 2023.

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