SANCTIONS OVERVIEW – EU
The EU has 28 member countries as follows:
Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, United Kingdom.
What is the governing legislation?
The EU imposes restrictive measures in order to promote the objectives of the EU Common Foreign and Security Policy (CFSP). Restrictive measures are adopted through the European Council, a body that is made up of the heads of state or government of all EU countries, the European Commission President and the High Representative for Foreign Affairs and Security Policy. Sanctions are imposed via a Council decision adopted unanimously.
Additional legislation may be needed to give full effect to the sanctions. Economic measures, such as asset freezes and export bans, require separate implementing legislation in the form of a Council Regulation, which is directly binding on EU citizens and businesses. An EU Regulation will usually enter into force on the day following its publication in the EU Official Journal.
Arms embargoes and travel bans only require a decision by the Council, which is directly binding on EU member states to implement.
UN – EU interplay
The EU implements all sanctions imposed by the UN. In addition, the EU may reinforce UN sanctions by applying stricter and additional measures and, where the EU deems it necessary, it may decide to impose autonomous sanctions.
To whom do EU restrictive measures apply?
EU restrictive measures apply within EU jurisdiction. This includes:
- all EU territory, including its airspace:
- on board any aircraft or vessel under the jurisdiction of an EU Member State;
- any EU national, located inside or outside of the EU;
- companies and organisations incorporated under the law of an EU Member State;
- any companies and organisations, in respect of any business done in whole or in part within the EU.
The EU does not adopt legislation with extra-territorial application in breach of international law.
In addition to sanctions that target specific individuals, the following countries are currently subject to EU restrictive measures (correct as of 11 October 2016):
- Bosnia and Herzegovina
- Burma / Myanmar
- Central African Republic
- Democratic Republic of Congo
- Republic of Guinea (Conakry)
- Ivory Coast
- Democratic People’s Republic of Korea (North Korea
- Republic of Guinea-Bissau
- Russian Federation
- Serbia and Montenegro
- South Sudan
- USA (protection against certain effects of sanctions applied)
What are the offences?
The EU prohibits a range of activities for each individual or entity that is subject to EU sanctions. Types of prohibitions that may be imposed include:
(i) Arms embargoes
Arms embargoes typically include restrictions on the following:
- sale, supply and transport of the goods included in the EU common military list;
- technical and financial assistance related to the above;
- the export of equipment used for internal repression;
- the export of dual-use goods to targeted countries.
(ii) Asset freezes
Where a person or entity is subject to an asset freeze the following typically apply:
- funds, tangible and intangible assets of that person or entity cannot be accessed, moved or sold;
- providing resources to the targeted entities and persons is prohibited;
- any business transactions with designated companies and persons are prohibited.
(iii) Visa or travel bans
Where a travel ban is imposed this will prevent the following:
- the entry of a targeted person to the EU;
- granting visas to a targeted person.
In addition to the above, wider restrictions may be imposed by the EU authorities, particularly in relation to specific areas of trade on which a targeted country may rely. Recent examples of where the EU authorities have taken such an approach include where broader restrictive measures were imposed in relation to Iran, Syria and the situation relating to Crimea.
What are the exceptions/defences?
A person or entity targeted by restrictive measures can ask the Council to reconsider its decision by providing observations on the listing. They can also challenge the measures before the General Court of the EU.
Within the individual regulations issued by the EU, a common defence is usually included to the effect that a person will not be liable if they “did not know, and had no reasonable cause to suspect that their actions would infringe the measure set out in the Regulation”. However, in order to be afforded this defence it would be necessary to demonstrate that a requisite level of due diligence has been carried out. Any due diligence that is undertaken will have to be considered and tailored to the specific set of factual circumstances involved.
What are the penalties?
Failure to comply with an EU restrictive measure is a criminal offence with the penalty being determined by each Member State. Penalties provided for must be “effective, proportionate and dissuasive”.