Advocate General’s opinion on the meaning of EU ‘restrictive measures’

Advocate General Wahl has just given a non-binding ECJ opinion in a case concerning a decision to deploy staff of an EU mission; Case C-455/14 P H v Council & Commission (7 April 2016). One issue in the case is whether the EU courts have jurisdiction over that decision, since it falls within the EU’s Common Foreign & Security Policy (over which the Court has only exceptional jurisdiction, e.g. applications to annul restrictive measures). The Advocate General (from Luxembourg) gave an opinion on the meaning of “restrictive measures” within Article 215 of the EU Treaty (TFEU).  Relevant parts are as follows:

  1. The AG’s view is that restrictive measures do not cover all EU acts which adversely affect the interests of individuals (and not a decision to redeploy staff of a mission).  Restrictive measures are ‘sanctions’, namely “instruments belonging to the area of the EU’s external action which are adopted as a reaction to the conduct of a country, entity or individual which the EU considers unlawful. That may be the case, for example, of a breach of an international agreement to which the EU is party or of a breach of customary rules of public international law. It may also be the case of a conduct which threatens international peace or security. Over the past years, sanctions have been imposed, among others, on countries responsible for repeated violations of fundamental rights, or entities and individuals linked to terrorist organisations.”
  2. The Advocate General describes these measures as being “akin to that of a penalty: restraining the exercise of certain rights which the target would otherwise enjoy. Their purpose is primarily to induce or force the author of the reprehensible conduct to stop or alter that conduct.”
  3. Restrictive measures are broad and “include financial and economic sanctions (such as freezing of assets or limitations on investments), travel measures (inter alia, travel or entry bans), trade measures (such as total embargoes, restrictions on the import or exports of certain goods or services, suspension or denunciation of trade agreements or of programmes of aid), and diplomatic measures (for example, severing diplomatic relations).”
  4. However, restrictive measures do not cover EU acts which do not have the characteristics of a ‘sanction’ and the purpose to induce or force compliance with a rule or principle allegedly breached.
  5. Therefore, there is no JR in the EU of all CFSP acts that may have restrictive effects on individuals, “but only of ‘sanctions’ against individuals decided and implemented in the context of the CFSP.”
This entry was posted in European Court Cases by Maya Lester QC. Bookmark the permalink.

About Maya Lester QC

Maya Lester QC has a wide ranging practice in public law, European law, competition law, international law, human rights & civil liberties. She has a particular expertise in sanctions. As the most recent (2016) Chambers & Partners directory put it, she "owns the world of sanctions". She spent 2011-12 in New York at Columbia Law School lecturing and writing on sanctions. She represents and advises hundreds of companies and individuals before the European and English courts and has acted in most of the leading cases, including Kadi, Tay Za, Central Bank of Iran, NITC and IRISL.

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