Legal Framework for the Regulation of Sanctions Measures in the European Union

Sanctions or restrictive measures are one of the most important instruments of foreign and security policy in the European Union, through which the EU can influence subjects of international relations in order to prevent conflicts or resolve existing crisis situations. Despite a fairly clear understanding in the legal and linguistic interpretation of the term "sanctions" or "restrictive measures" ("restrictive measures") The European Union does not consider that they are exclusively "punishable" or "punitive-punitive" in nature. According to the logic of European politicians, sanctions are aimed at changing the policy or behavior of one or another subject of international relations who are responsible for illegal actions from the EU's point of view.

Indeed, one of the pronounced trends in the field of international relations of the last two decades has been a significant expansion of the practice of using sanctions measures, which usually included various restrictions on a wide range of actions of some subjects of international law against others. The main purpose of such actions is to change the policy and (or) behavior of a "toxic" participant in international relations, which, according to the initiators of sanctions, violates the principles and standards of international law, primarily the UN Charter and normative documents arising from the practice of the UN Security Council, as well as regional agreements on security, territorial integrity and respect for human rights. a person. Classical international law attributes the development and application of sanctions measures to the exclusive competence of the UN Security Council, but in recent years in practice it has proved difficult for a number of reasons. The main problem was the existence of the "veto right" of the permanent members of the UN Security Council, which they can impose on any decision or resolution of a key body of this world international organization. As a result, given the fundamental confrontation between the United States and the USSR during the Cold War, the activities of the UN Security Council until the last decade of the last century in the use of its sanctions powers were almost invisible. In most cases, States resorted to the use of national sanctions mechanisms individually or by agreement with groups of countries, usually within the framework of the "Western community".

  During the Cold War, the UN Security Council managed to agree and apply collective economic sanctions only twice, in one case they were directed against South Africa (1962-1994), in the other against Rhodesia (now Zimbabwe) (1965-1968). At that time there was no European Union in its current form, but only the European Economic Community (EEC) was being formed, consisting of 6 states, and which did not have a pronounced foreign policy competence.  Therefore, in some rather rare cases, the EEC countries have resorted, as a rule, to the use of unilateral national sanctions. And even when the UN Security Council imposed sanctions against Southern Rhodesia, European countries decided to ensure their implementation not through Community institutions, but through their national sanctions mechanisms.

In general, at the initial stage of the formation and development of the activities of the EEC, foreign policy issues were practically not given due attention to sanctions measures, since this was not reflected in the Treaty of Rome of 1957, which was the legal foundation for the creation of the EEC. Therefore, for a long time sanctions remained within the competence of individual European states (including those who were not members of the EEC), which complied with rare sanctions resolutions of the UN Security Council, or acted at their discretion, based on their own national interests (in particular, with respect to their colonies in Africa and Asia). For example, France twice imposed economic restrictions against Tunisia, its former colony: the first time in 1957-1963 in order to stop the support of the Algerian rebels from the Tunisian government, and the second time in 1964-1966 during the conflict over the expropriation of agricultural land owned by French citizens in Tunisia. The UK also resorted to unilateral sanctions twice, taking restrictive measures against Uganda in 1972-1979 and against Southern Rhodesia in 1965-1979.

If the EEC member states could use national measures of influence in relation to third countries at their discretion, they did not have such competence in relation to each other. The Rome Treaty of 1957^[1] did not allow the EEC states to apply restrictive measures in the customs sphere against members of the Community, primarily by introducing quotas and quantitative restrictions in mutual trade ^{[1, Articles 30-32]}. Within the framework of the customs union being created on the territory of the EEC, the establishment of import and export customs duties and any other equivalent charges in trade relations between the member states was prohibited. In addition, it was not allowed to introduce restrictive measures against imported goods from third countries that entered the territory of the EEC countries in compliance with all necessary formalities ^{[1, Articles 9-10]}.

The process of expansion and deeper economic integration of the European Community, which began in 1970-80, had quite a big impact on increasing the level of consolidation of the actions of European states. This concerned both interaction within the framework of creating a "Common Market" within the EEC, and joint actions in the external arena. In 1979, the European Parliament, a new legislative institution of the Community, was launched, which was first formed on the basis of direct democratic elections. It has become an important permanent political forum of the EEC, within which foreign policy processes have become more actively discussed. The European Parliament to a large extent contributed to the effective implementation of the mechanism of European political cooperation, which appeared a few years earlier and which was officially formed with the entry into force of the Single European Act in 1987.^[2]

The period 1970-1980 became an important stage in deepening integration processes in the EEC, increasingly adding structure to the elements of political interaction in building a single internal market within the Community. It is quite logical that signed in February 1992.  The Maastricht Treaty on the European Union (EU) ^[3] paved the way for the transformation of the EEC into an economic, political and monetary union. This most important system-forming normative act has brought significant changes to various spheres of the European Union's life, in particular, in the field of the international jurisdiction of the association, a separate "pillar" dedicated to the implementation of the common Foreign and security policy of the EU (hereinafter referred to as the AFP) has appeared. In section V of the Maastricht Treaty, for the first time, the objectives of the OPVB were set out and, in general terms, ways to achieve them in practice were established.

It should be noted that the scope of the OPVB was assigned to the joint competence of the Union and its member States and had a pronounced character of intergovernmental cooperation. Thus, the most important supranational institution of the Union - the Council of the EU, which could make decisions and regulations on the initiative of the member States on the basis of unanimity (consensus), was given the main powers within the framework of the OPVB. Other EU institutions performed mainly only advisory and auxiliary functions, for example, the European Parliament was only informed about the actions being taken, and the European Commission, which was the "engine" of the European Union in the implementation of trade, customs and foreign economic policy, within the framework of the PRSP performed auxiliary functions to ensure the coherence of the actions of the EU member states within the framework of the developed common approaches. on foreign policy issues. The financial costs associated with the implementation of the PRSP were covered in most cases from the national budgets of the EU member States.

            In practice, it turned out that the new design of interaction in the field of public security was not very effective due to the various foreign policy interests of the EU countries, which sometimes were diametrically opposed. The emerging crisis situations in Africa, the Middle East and especially in Yugoslavia have clearly shown the European Union's unwillingness to respond quickly and in a timely coordinated manner to these events, as a result of which its image as an influential political force in international relations has seriously suffered in the eyes of the world community.

 It became obvious that in order to increase the effectiveness and coherence of actions in the external arena, it was necessary to develop new mechanisms and procedures for the OVPB. This was one of the main tasks of the Intergovernmental Conference on the Revision and Amendment of the Maastricht Treaty (IPC), which in June 1997 approved a package of large-scale amendments that became the foundation of the adopted new Amsterdam Treaty ^[4]. In its text, the section on the AFP already consisted of 18 articles, of which only 6 articles reproduced almost verbatim the corresponding articles of the Maastricht Treaty.  Issues such as the coordination of the actions of the member states of the Union in international organizations, including the UN Security Council, the interaction of their foreign missions, cooperation with the European Parliament, the procedure for submitting proposals and initiatives to the EU Council, the functions of the Political Committee and the European Commission have not changed compared to the Maastricht Treaty. Three articles of section V of the Amsterdam Treaty contained conceptually new provisions: on the decision-making mechanism (J.13), on the procedure for concluding international agreements (J.14) and on the powers of the High Representative for the AFP (J.16).

The remaining 9 articles were modified and supplemented to one degree or another in comparison with the text of the Maastricht Treaty. Some amendments were clarifying in nature, but a number of innovations characterized the evolution of the Union's position on foreign policy and security issues. In particular, if the paragraph of article J.1 of the EU Treaty of 1993 referred the definition and implementation of the AFP to the joint competence of the Union and its member States, then the wording of article J.1 of the Amsterdam Treaty already refers to this function only in relation to the Union. Accordingly, one of the main goals of the OVPB - strengthening common security by all available means - was no longer the responsibility of the Member States, but was included in the terms of reference of the entire Union as a whole (paragraph 2 of Article J.1).

According to the provisions of the Amsterdam Treaty, there has been a certain strengthening of the role and importance of the European Commission in the field of public safety. Thus, the new paragraph 4 of article J.4 provided that "the Council may request the Commission to submit to it any relevant proposals concerning the AFP in order to ensure the implementation of joint actions." In fact, the European Commission received the de facto right of initiative to put forward proposals in the field of public safety, which it had not previously appeared in the list of powers. It is also worth noting the increasing role of the European Parliament in the field of public safety. And although the Amsterdam Treaty did not formally include provisions directly expanding its foreign policy competence, nevertheless, the opinion of the European Parliament on the most important aspects of the AFP was treated more carefully in the EU Council, given the increased political weight of European legislators when making common major decisions within the European Union.

One of the novelties of the Amsterdam Treaty in the foreign policy sphere was the establishment of the post of High Representative for the AFP. The absence of an official in the EU who would personify the EU's foreign policy on the world stage was rightly assessed by many politicians in the 90s of the last century as a clearly negative factor that significantly reduces the image and viability of the Union in international relations. But at the same time, France's innovative proposal to introduce a special high-level political position for coordination in the field of public security was assessed by the majority of Member States as too bold and far-reaching. There were concerns that a significant political official could seriously influence the maintenance of the balance of interests that has developed in the relations of the Union and its member States in the field of public security. As a result, support was given to a compromise idea – to give administrative and representative functions in matters of public security to an official who has already been mentioned in existing agreements. As a result, article J.8 of the Amsterdam Treaty established that the Secretary General of the Council became the High Representative of the Union for the AFP, who, in accordance with article 151 of the DES, was appointed to the post by a unanimous decision of the Council.

The first and only person to hold the post of Secretary General of the EU Council was the former Secretary General of NATO H.Solana (Spain). According to article J.16, "The Secretary-General of the Council, the High Representative for the Council, assists the Council in matters covered by the scope of the Council, including by assisting in the formulation, preparation and implementation of policy decisions and, where necessary and when there is a request from the country-Chairman of the Council, he carries out on its behalf political dialogue with third parties".

The Amsterdam Treaty has significantly strengthened the competence of the Union in matters of conducting a common foreign policy, but it cannot be said that the differences in the interpretation of certain international events have completely disappeared, and the coherence of actions in the field of OVPO has reached the desired level. The EU Constitution signed in 2004 (the Treaty on the Introduction of a Constitution for Europe) ^[5], which significantly expanded the competence of the Union on issues of common foreign and security policy, was designed to strengthen the single voice of the EU in the foreign arena, but the failure of referendums on the approval of the EU Constitution in Holland and France put on pause the efforts of Brussels politicians to to increase the role of the Union in the field of OPVB. Nevertheless, their efforts were not in vain and many ideas and provisions of the EU Constitution found expression in the text of the Lisbon Treaty ^[6], signed on December 13, 2007 and entered into force on December 1, 2009.  

Within the framework of the Lisbon Treaty (LD), the EU's activities in the international arena are carried out based on the principles and standards that underlay its creation and subsequent evolution. Their list is set out in Article 21 (1) of the LD, and consists of such categories as:

- democracy,

- the rule of law

- universality and indivisibility of human rights and fundamental freedoms

- respect for human dignity

- equality and solidarity

- compliance with the provisions of the UN Charter and international law.

At the same time, the EU has now clearly outlined its goals in all areas of international relations. These include:

- protection of European values, fundamental interests in matters of security, independence and integrity;

- consolidation and support of democracy, the rule of law, rights

human rights and principles of international law;

- Preservation of peace, conflict prevention and strengthening of international security in accordance with the purposes and principles of the UN Charter, as well as the principles of the Helsinki Final Act and the goals of the Charter of Paris (signed on 21.11.1990 within the OSCE), including those related to external borders;

- support for sustainable development in the economic, social and environmental terms of developing countries, with the main goal of eradicating poverty;

- promoting the integration of all countries into the world economy, including through the gradual elimination of obstacles to international trade;

- promoting the development of international measures to preserve and improve the quality of the environment and the sound management of the world's natural resources to ensure sustainable development;

- providing assistance to the population, countries and regions that are facing disasters caused by natural factors or man;

- development of an international system based on enhanced multilateral cooperation and good global governance.

Despite the fact that the "three pillars system" established by the Maastricht Treaty was eliminated in the Lisbon Treaty, the scope of the AFP not only did not lose its significance, but on the contrary, it was significantly redesigned and received a number of important additions and changes. First, it should be noted that the post of President (Chairman) of the European Council was established, elected for 2.5 years. Among its powers under Article 15 (paragraph 6) is the provision to ensure the representation of the Union in the international arena on issues related to the common Foreign and Security Policy, but without prejudice to the powers of the EU High Representative for Foreign Affairs and Security Policy. 

Another important innovation of the LD was the establishment of the post of the High Representative of the Union for Foreign Affairs and Security Policy, to whom all the functions and powers of the Secretary General of the Council of the EU were transferred. He is appointed by the European Council on the basis of a qualified majority with the consent of the President of the European Commission and is responsible for the implementation of an agreed common foreign and security policy of the Union. The European Union's Foreign Policy Service, including EU embassies in third countries and representative offices at international organizations, was transferred to his subordination. Under his leadership, a special "formation" of the EU Council, the Council of Foreign Ministers, began to function. He also received the position of Vice-President of the European Commission and may be dismissed by the European Parliament in the event of a vote of no confidence.

An important function of the High Representative for Foreign Affairs was the development of proposals and initiatives in the field of EU international policy and their implementation, if approved by the EU Council. In practice, he became a kind of "Foreign Minister" of the Union, responsible for the EU's foreign and security policy in modern conditions. He also holds a key position in the EU sanctions mechanism, proposing specific restrictive measures and monitoring their implementation.

Unlike the Maastricht and Amsterdam Treaties, the new Treaty on the Functioning of the European Union (TFEU) has a separate section (IV) dedicated to restrictive measures. True, it consists of only one article (Article 215), but its importance cannot be underestimated, since it created a direct legal foundation for sanctions actions. Firstly, proposals on restrictive measures are prepared by the High Representative for Foreign Affairs and Security Policy and together with the European Commission he submits them to the EU Council. Secondly, the final decision on the adoption of restrictive measures is made by the EU Council on the basis of consensus or a qualified majority, depending on their subject orientation. Thirdly, sanctions measures may provide for the complete or partial suspension or reduction of economic and financial relations with one or more third countries. Fourth, the EU Council is also authorized to take restrictive measures against individuals and legal entities, groups of individuals or non-State entities.

Separately, it is worth dwelling on the issues of the so-called "legal guarantees" on the sanctions adopted. We are talking about the legality from the point of view of EU law of the approved restrictive measures and the possibility for the interested party to appeal against them. According to the general rules, the "guarantor of justice" in the European Union is the Court of Justice of the EU, however, by virtue of Article 275 of the TFEU, it does not have authority over the provisions on the common foreign and security policy, as well as in relation to acts adopted on their basis. Nevertheless, this provision does not prohibit individuals and legal entities from applying to the EU Court in order to lift the imposed sanctions, and many use this right in practice. In general, legal entities and individuals who are subject to such measures may challenge them in the Court of the European Union on grounds of reasonableness, reasonableness, proportionality and proportionality.

At the same time, in the case of challenging the acts of the European Union on the sanctions imposed, the EU Court has limited jurisdiction, since it considers only issues related to compliance with procedural points and assessing the reliability of the factual data used when taking measures against individuals and legal entities, but not the substantive side and the substantive motivation of the sanctions themselves. In other words, the EU Court has no right to interfere either in the legality of the sanctions adopted, or to question the detailed content of the restrictive measures imposed.

It is impossible to ignore the question of the methodology for preparing a set of restrictive measures against certain individuals. In this regard, an important place is occupied by a document entitled "Guidelines for the implementation and assessment of restrictive measures (sanctions) within the framework of the common Foreign and Security Policy of the EU" ^[7] (2018). The basic definitions and concepts are set out here, the content of the terms and categories used is disclosed, procedural provisions are specified, certain restrictive measures are characterized, their validity periods, the procedure for appealing against the sanctions adopted, etc. So, in particular, the "Guidelines" contain a list of possible categories of restrictive measures, they primarily include an embargo on the supply of weapons and components to them, a ban on the supply of various kinds of goods and equipment, including "dual-use" goods, restrictions on entry into the EU, financial sanctions of a wide range. Unlike the sanctions of individual states (for example, the United States), the restrictive measures of the European Union always have a limited duration. Most often, EU sanctions are adopted for 6 months or a year, after which they can be prolonged. If this does not happen, the sanctions terminate automatically, no special documents on their cancellation are required to be accepted.

Control over the implementation of decisions of the EU Council on measures already taken is primarily carried out by the Office of the EU High Representative for Foreign Affairs and Security Policy and the secretariat of the EU Commission, which are directly responsible by virtue of the provisions of Chapter 2 of the DES, as well as other interested EU institutions and bodies. At the moment, there are no sanctions for violating or circumventing restrictive measures at the EU level, this is within the competence of the member states, however, as recent practice has shown, there is a need for such legislation and work in this direction has already begun. 

Along with the analysis of the legal basis of the restrictive measures of the EU and the instruments of imposing sanctions in practice, the question of their effectiveness in the modern system of international relations cannot be ignored. Many Russian and foreign experts note that EU sanctions do not always achieve their ultimate goal, and in some cases they cause more damage to the European Union itself than to the addressee of restrictive measures. Such assessments, of course, have grounds for themselves, since it is not always possible to accurately calculate and predict the consequences of the actions of sanctions measures. But is this the main indicator of the effectiveness of the sanctions imposed? As already noted, the EU does not consider restrictive measures only as a punitive and punitive tool for influencing the behavior of third countries, individual legal entities and individuals. The main purpose of the sanctions adopted is to encourage the object of restrictive measures to change their behavior (policy) and bring it into line with the values and standards of the European Union itself, as well as with the fundamental principles of the United Nations and international law. And here the so-called "quantitative" assessments of the effectiveness of sanctions give way to "qualitative" ones, that is, in the end, it is not so important how quickly and with what consequences they will be implemented, what is important is that they should lead to the desired result. Therefore, the restrictive measures taken may be in effect for more than one year, they are constantly being supplemented and changed, becoming more and more "sensitive" and ultimately, in most cases, lead to the desired result.

At the same time, EU sanctions cannot be considered as any separate measures of influence on participants in international relations due to certain prevailing political circumstances. Within the framework of current EU legislation, the mechanism for applying sanctions is an integral part of the common foreign and security policy of the Union in order to promote established European democratic values in the world on the one hand, and to protect the geopolitical and economic interests of the European Union as a whole and the interests of individual EU member states on the other hand. Taking into account the growing role of the EU in the modern world and the task of increasing the political weight of the Union in the future, it is safe to assume that the importance of the tool for using sanctions measures will only increase.