EU Law, International Law and Economic Sanctions against Terrorism: The Judiciary in Distress? Research Papers in Law, 3/2008

From the Introduction. This article seeks to examine the relationship between European Union law, international law, and the protection of fundamental rights in the light of recent case law of the European Court of Justice (ECJ) and the Court of First Instance (CFI) relating to economic sanctions against individuals. On 3 September 2008, the ECJ delivered its long-awaited judgment in Kadi and Al Barakaat on appeal from the CFI.3 In its judgment under appeal,4 the CFI had held that the European Community (EC) is competent to adopt regulations imposing economic sanctions against private organisations in pursuance of UN Security Council (UNSC) Resolutions seeking to combat terrorism; that although the EC is not bound directly by the UN Charter, it is bound pursuant to the EC Treaty to respect international law and give effect to UNSC; and that the CFI has jurisdiction to examine the compatibility of EC regulations implementing UNSC resolutions with fundamental rights not as protected by the EC but as protected by jus cogens. On appeal, following the Opinion of Maduro AG, the ECJ rejected the CFI’s approach. It held that UNSC resolutions are binding only in international law. It subjected the contested regulations to full review under EC human rights standards and found them in breach of the right to a hearing, the right to judicial protection and the right to property. Kadi and Al Barakaat is the most important judgment ever delivered by the ECJ on the relationship between EC and international law and one of its most important judgments on fundamental rights. It is imbued by constitutional confidence, commitment to the rule of law but also some scepticism towards international law. In the meantime, the CFI has delivered a number of other judgments on anti-terrorist sanctions assessing the limits of the “emergency constitution” at European level. The purpose of this paper is to examine the above case law and explore the dilemmas and tensions facing the EU judiciary in seeking to define and protect the EU’s distinct constitutional space. It is divided as follows. It first looks at the judgment in Kadi. After a short presentation of the factual and legal background, it explores the question whether the EU has competence to adopt smart sanctions. It then examines whether the EU is bound by resolutions of the Security Council, whether the ECJ has jurisdiction to review Community measures implementing such resolutions and the applicable standard of judicial scrutiny. It analyses the contrasting views of the CFI, the Advocate General, and the ECJ taking account also of the case law of the European Court of Human Rights (ECtHR). Further, it explores the consequences of annulling the contested regulation. It then turns to discussing CFI case law in relation to sanctions lists drawn up not by the UN Security Council but by the EC. The paper concludes by welcoming the judgment of the ECJ. Whilst its reasoning on the issue of Community competence is questionable, once such competence is established, it is difficult to support the abrogation of Community standards for the protection of fundamental rights. Such standards should ensure procedural due process whilst recognising the importance of public security.

Who will monitor the spies? CEPS Commentary, 8 January 2014

A majority of national governments across the EU have long tried to cordon off their practices of mass interception of communications data and cyber-hacking of foreign companies and diplomats from supranational scrutiny by the EU institutions and courts, arguing that they remain within the remit of their ‘exclusive competence’ on grounds of national security. In light of the revelations that some EU member states (namely the UK, France, Germany and Sweden) are running their own secret interception programmes, however, the question of whether the EU can and should intervene becomes more pressing. This commentary, by a team of JHA specialists at CEPS, offers four important legal reasons why the covert surveillance programmes of member states should not be regarded as falling outside the scope of EU intervention.

The End of the Transitional Period for Police and Criminal Justice Measures Adopted before the Lisbon Treaty: Who monitors trust in the European Criminal Justice area? CEPS Liberty and Security in Europe No. 74, December 2014

This study examines the legal and political implications of the forthcoming end of the transitional period for the measures in the fields of police and judicial cooperation in criminal matters, as set out in Protocol 36 to the EU Treaties. This Protocol limits some of the most far-reaching innovations introduced by the Treaty of Lisbon over EU cooperation on Justice and Home Affairs for a period of five years after the entry into force of the Treaty of Lisbon (until 1 December 2014), and provides the UK with special ‘opt out/opt-in’ possibilities. The study focuses on the meaning of the transitional period for the wider European Criminal Justice area. The most far-reaching change emerging from the end of this transition will be the expansion of the European Commission and Luxembourg Court of Justice scrutiny powers over Member States’ implementation of EU criminal justice law. The possibility offered by Protocol 36 for the UK to opt out and opt back in to pre-Lisbon Treaty instruments poses serious challenges to a common EU area of justice by further institutionalising ‘over-flexible’ participation in criminal justice instruments. The study argues that in light of Article 82 TFEU the rights of the defence are now inextricably linked to the coherency and effective operation of the principle of mutual recognition of criminal decisions, and calls the European Parliament to request the UK to opt in EU Directives on suspects procedural rights as condition for the UK to ‘opt back in’ measures like the European Arrest Warrant.

Public feeling in Ukraine ahead of the parliamentary election. OSW Commentary No. 89, 2012-07-12

After two and a half years under President Viktor Yanukovych and the Party of Regions, the overwhelming majority of Ukrainians are dissatisfied with the state the country’s economy is currently in and the direction it has been developing in. There has also been a significant drop in stability and social security with the general public increasingly feeling that the government has little interest in their problems. Only 16% of Ukrainians believe that the current government has performed better than their predecessors, although overall confidence in both the ruling party and the opposition remains low. Nonetheless, falling support for the president and the Cabinet does not seem to have translated into greater popularity for the country’s opposition parties; these currently enjoy the confidence of only a quarter of the electorate. The clear lack of credibility for politicians on either side of the political spectrum, coupled with an almost universal preoccupation with the bare necessities of life, has shifted the political processes in Ukraine further down the agenda for the majority of Ukrainians. Ukraine’s poor economic performance, which over the last two years has been addressed through a series of highly unpopular economic reforms, has resulted in a growing mood of discontent and increased civil activity, with the Ukrainian people reporting a greater willingness than ever to join protests on social issues. Most of them, however, have shown much less interest in political rallies. This is likely to stem from low levels of trust in the opposition and the general belief that opposition politicians are not a viable alternative to the current government. One may therefore assume that there will be little public scrutiny of the parliamentary election scheduled for 28 October, and that the likelihood of mass demonstrations during it is low. However, in the event of large-scale vote rigging and a dismissive response from the government, spontaneous unsanctioned rallies cannot be ruled out. What is more likely, however, is a series of protests after the elections, when the already difficult economic situation is further exacerbated by a predicted rise in the price of gas for Ukrainian households and a possible move to devalue the Ukrainian hryvnia.

A Black Knight in the Eastern Neighbourhood? Russia and EU Democracy Promotion in Armenia and Moldova. EU Diplomacy Paper No. 7, October 2014

Europe’s peace and security are challenged by the events taking place in the Eastern Partnership region. Amid growing tensions between the European Union (EU) and Russia, the fate of countries in the common neighbourhood and their progress towards democracy are increasingly at stake. This paper tries to understand to what extent Russia is undermining EU democracy promotion in the Union’s eastern neighbourhood. By focusing on the cases of Armenia and Moldova, EU democracy promotion is analysed in light of the triangular relationship between the countries under scrutiny, the EU and Russia. It argues that domestic conditions and external pressures, linked through the filter of problems of ‘stateness’, are both crucial and mutually reinforcing for democratisation. The paper shows that Russia can undermine EU democracy promotion to the extent that it strengthens the aversion of domestic political forces to democracy-oriented reforms.

The Italian Parliament and the EU: a slow and gradual Europeanization. ACES Working Papers, August 2009

In this paper we discussed how the literature traces a growing involvement of the national parliaments in EU policy-making. Three phases can be distinguished: limited or no involvement was the trend until the 1980s; after the Single Act (SEA, 1987), national parliaments started to be interested in European affairs and to set up specialized committees; following the Maastricht Treaty (TUE, 1992), the involvement of national parliaments in EU affairs became a response to the question of "democratic deficit" in the EU (Norton, 1995). The growing number of policies dealt with at the EU level, the consequently increased influence of EU law in national legislations, the new powers of the Union: all of these worked together to push national legislators to seek a scrutiny role in the drafting of EU legislation. According to Laprat (1995: 1), once the TUE was formally approved, a more parliamentary climate prevailed. In more recent years, national parliaments have distinguished themselves for their increased role in the scrutiny of EU legislation (Raunio and Hix, 200I: !52); more specialized MPs sit in the committees on EU affairs; the amount of work for EU specialists has increased. Also, parliamentary scrutiny, initially only optional and ex post, is now increasingly ex ante and/or mandatory (Maurer and Wessels, 2001: 425-475).

Balkan Pitfalls. ACES Working Papers, 2011

The Western Balkans are becoming increasingly mired in political conflicts, social disquiet, ethnic disputes, and state fragilities that can precipitate a new phase of regional instability. At the same time, the major international players may be unprepared and ill equipped to manage or resolve the emerging conflicts. While the U.S. and NATO have scaled down their presence in the region, the EU’s capabilities and effectiveness are coming under closer scrutiny.

Banking Sector Soundness, Innovation, and Development: Emerging Europe and South Asia. ACES Working Papers, 2012

While most academic and practitioner researchers agree that a country’s commercial banking sector’s soundness is a very significant indicator of a country’s financial market health, there is considerably less agreement and substantial confusion surrounding what constitutes a healthy bank in the aftermath of 2007+ financial crisis. Global banks’ balance sheets, corporate governance, management compensation and bonuses, toxic assets, and risky behavior are all under scrutiny as academics and regulators alike are trying to quantify what are “healthy, safe and good practices” for these various elements of banking. The current need to quantify, measure, evaluate, and compare is driven by the desire to spot troubled banks, “bad and risky” behavior, and prevent real damage and contagion in the financial markets, investors, and tax payers as it did in the recent crisis. Moreover, future financial crisis has taken on a new urgency as vast amounts of capital flows (over $1 trillion) are being redirected to emerging markets. This study differs from existing methods in the literature as it entail designing, constructing, and validating a critical dimension of financial innovation in respect to the eight developing countries in the South Asia region as well as eight countries in emerging Europe at the country level for the period 2001 – 2008, with regional and systemic differentials taken into account. Preliminary findings reveal that higher stages of payment systems development have generated efficiency gains by reducing the settlement risk and improving financial intermediation; such efficiency gains are viewed as positive financial innovations and positively impact the banking soundness. Potential EU candidate countries: Albania; Montenegro; Serbia

The EU Counter-Terrorism Policy Responses to the Attacks in Paris: Towards an EU Security and Liberty Agenda. CEPS Liberty and Security in Europe No. 81/February 2015

This paper examines the main EU-level initiatives that have been put forward in the weeks following the attacks in Paris in January 2015, which will be discussed in the informal European Council meeting of 12 February 2015. It argues that a majority of these proposals predated the Paris shootings and had until that point proved contentious as regards their efficacy, legitimacy and lawfulness. The paper finds that EU counterterrorism responses raise two fundamental challenges: A first challenge is posed to the freedom of movement, Schengen and EU citizenship. Priority is being given to the expanded use of large-scale surveillance and systematic monitoring of all travellers including EU citizens, which stands in contravention of Schengen and the free movement principle. A second challenge concerns EU democratic rule of law. Current pressures calling for the adoption of measures such as the EU Passenger Name Record challenge the scrutiny roles held by the European Parliament and the Court of Justice of the EU on counterterrorism measures in a post-Lisbon Treaty setting. The paper proposes that the EU adopts a new European Agenda on Security and Liberty based on an EU security (criminal justice-led) cooperation model that is firmly anchored in current EU legal principles and rule of law standards. This model would call for ‘less is more’ concerning the use, processing and retention of data by police and intelligence communities. Instead, it would pursue better and more accurate use of data meeting the quality standards of evidence in criminal judicial proceedings.

In Pursuit of Peace, Prosperity and Power – What ASEAN and EU can learn from each other? EU Centre Singapore Policy Brief No. 7, May 2014

The EU and ASEAN are often compared and seen as relatively successful regional organisations in their respective regions. Yet of late, both regional organisations are under intense scrutiny as they confront challenges posed by the financial crisis and rising geopolitical tensions. Their inability to respond effectively to these challenges has brought about a chorus of criticisms. Noting the current tensions face by both the EU and ASEAN in their respective regions, one could not help but wonder how and if they would be able to deal with the increasing complex security landscape because of a weakened US, and the rise of the rest. This article will compare and contrast the approaches taken by the EU and ASEAN thus far in trying to build peace and prosperity, and how they manage the demands of power politics to distill some lessons on what they can learn from each other in order to navigate an increasingly paradoxical world of economic interdependence but political fragmentation.

A Eurozone Subcommittee in the European Parliament: High hopes, low results? European Policy Brief No. 31, July 2014

The task of ensuring the democratic legitimacy of the euro has been placed high on the agenda. A eurozone subcommittee in the European Parliament is one of the rare concrete proposals to secure this, creating high hopes. Due to legal and political hurdles the idea might nonetheless have minimal results, which might result in suboptimal parliamentary scrutiny of the eurozone. This Policy Brief argues that if a eurozone subcommittee is to be both meaningful and politically feasible, it should combine substantial competences with innovative decision-making.

The sense and nonsense of Eurozone level Democracy. Egmont Paper No. 70, October 2014

The democratic functioning of the EU is frequently called into question. Increasingly, the focus of this criticism is the perceived lack of legitimacy in eurozone policymaking. The eurozone has gained a firmer grip on national policymaking in recent years, but has not adapted its democratic structure to reflect this. To tackle this problem, European and national policymakers have committed to improving the eurozone’s legitimacy and accountability. One of the rare concrete proposals by policymakers is the institution of parliamentary control that deals specifically with eurozone matters. This Egmont Paper examines whether it would be beneficial to have eurozone level democracy. This is defined as parliamentary scrutiny of, by and for the eurozone. It would deal with issues that solely concern the eurozone, and decisions would be made solely by parliamentarians from the eurozone.

Too good to be true? A quick assessment of the EC’s new Better Regulation Package. CEPS Special Report No. 108/May 2015

On 19 May 2015, the European Commission published a very comprehensive, ambitious and innovative Better Regulation package, which contains new guidelines on various phases of the policy cycle and various documents setting out the rules and functioning of entirely new consultation platforms and a new body in charge of regulatory scrutiny. This Special Report presents some initial impressions on the content of this remarkable set of new documents, which will shape the way in which EU policies will be prepared, shaped, monitored and evaluated in the years to come.

The consequences for Russia of the nuclear deal with Iran. OSW COMMENTARY NUMBER 177/03.08.2015

The five permanent members of the UN Security Council (the USA, the United Kingdom, China, France and Russia) plus Germany and the European Union signed a deal with Iran on 14 July in Vienna (a Plan of Action with five appendices, henceforth referred to as the Vienna Agreement). Under this agreement, Iran undertook to restrict its nuclear programme and to bring it under international scrutiny for 15 years in exchange for a gradual lifting of international sanctions (both those imposed between 2006 and 2010 by the UN Security Council and the unilateral US and EU sanctions). Even though Russia has officially reacted positively to this deal, the consequences it will have are rather ambiguous from Moscow’s point of view. Iran looks set to become stronger and will possibly normalise its relations with the West, and especially the United States. This, in political terms, is a disadvantage for Russia. The Kremlin’s ability to use its policy towards Iran as a bargaining chip in contacts with Washington will be reduced significantly. In turn, the benefits will include improving the perception of Russia in the West and the opening up of new opportunities for the geopolitical game in the region, both with Iran and its opponents in the Arab world. Similarly, in economic terms, the possible lifting of sanctions will offer Russia new opportunities to achieve immediate benefits owing to co-operation in the nuclear and military-technical areas. In the short term, the lifting of sanctions will not pose any threat to Russia’s position on the global energy markets. However, in the long term, the end of Iran’s international isolation may bring negative consequences for Russia, such as the dominant position of Western and/or Chinese companies in the Iranian upstream sector, rising exports of Iranian oil and gas to EU and Asian markets (which are essential for Russia) and the downward pressure on oil and gas prices.

What is happening to the Schengen borders? CEPS Liberty and Security in Europe No. 86, December 2015

What is happening to the Schengen borders? Is Schengen in ‘crisis’? This paper examines the state of play in the Schengen system in light of the developments during 2015. It critically examines the assertion that Schengen is ‘in crisis’ and seeks to set the record straight on what has been happening to the intra-Schengen border-free and common external borders system. The paper argues that Schengen is here to stay and that reports about the reintroduction of internal border checks are exaggerated as they are in full compliance with the EU rule of law model laid down in the Schengen Borders Code and subject to scrutiny by the European Commission. It also examines the legal challenges inherent to police checks within the internal border areas as having an equivalent effect to border checks as well as the newly adopted proposal for a European Border and Coast Guard system. The analysis shows that the most far-reaching challenge to the current and future configurations of EU border policies relates to ensuring that they are in full compliance with fundamental human rights obligations to refugees, effective accountability and independent monitoring of the implementation of EU legal standards. This should be accompanied by a transparent and informed discussion on which ‘Schengen’ and which 'common European Border and Coast Guard Agency' we exactly want within current democratic rule of law and fundamental rights remits.