The Legal Basis for EU Sanctions on Russia

In my EU Law workshop yesterday, I ended up answering a series of questions from students on how the EU might react to Russia’s latest acts of aggression in Europe. Absent the time to teach an entire class on the EU’s Common Foreign and Security Policy (CFSP), I have drafted the below blog which seeks to explain the EU’s competence over foreign affairs and how it takes action in this field.

Origins of the CFSP

Prior to the Treaty of Maastricht, external action of the European Economic Community (EEC) was limited to trade policy with non-EEC countries through the Common Commercial Policy. Recognising the inadequacy of European Political Cooperation, the Member States sought to expand and deepen their cooperation by reorganising the EEC into the European Union. The Maastricht Treaty created a ‘pillar system’ which would be brought within the auspices of the union. The three pillars were:

• The European Communities (the former EEC, as well as the European Coal and Steel Community, and the European Atomic Energy Community). This pillar operated on the basis of the ‘Community method’ of integration.
• The Common Foreign and Security Policy (CFSP) Pillar, based on the intergovernmental method of integration.
• The Police and Judicial Co-operation in Criminal Matters pillar, also based on intergovernmentalism.

The CFSP was, therefore, established by Article B of the Treaty on European Union, with the objective:

‘to assert its identity on the international scene, in particular through the implementation of a common foreign and security policy including the eventual framing of a common defence policy, which might in time lead to a common defence’.

Article B, Treaty of Maastricht

The CFSP today

The Treaty of Lisbon eventually abandoned the complex pillar structure and folded all of the pillars into a European Union with distinct legal personality. Article 18 TEU established the Union’s High Representative for Foreign Affairs and Security Policy, who is responsible for the CFSP independently of their role within the European Commission. Despite the abolition of the pillar system, however, the intergovernmental method of integration remains in evidence when it comes to CFSP decision making. Article 24 TEU provides that the CFSP ‘shall be defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise.’

The EU Sanctions Regime

Article 29 TEU provides that:

‘The Council shall adopt decisions which shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the Union positions.’

Article 29 TEU

While this article could hardly be more prosaic, it serves as the basis for the adoption of sanctions by the EU. In response to Russia’s annexation of Crimea in 2014, the Council adopted Decision 2014/512/CFSP of 31 July 2014, which placed restrictions on transactions in equities and financial instruments issued by certain Russian state-owned banks, including GAZPROMBANK and SBERBANK. Later that year the EU adopted a variety of other measures including export controls on arms and goods that could be used for military purposes, and prohibitions on the supply of services relating to offshore oil extraction.

As fuels and mining are by far the most significant source of EU-Russian trade, further restrictions in this area, therefore, appear to be the most obvious target for further sanctions. Given the ongoing global energy crisis, however, this option brings with it as much pain on the EU as it does on Russia. Furthermore, some Member States, notably Germany, are particularly reliant on Russian gas supplies. The unanimity required to adopt such sanctions makes this course of action more difficult still.

The EU’s competence over foreign and security policy is neither exclusive, nor shared, nor supplementary. Instead, Article 2(4) TEU describes the CFSP as a sui generis area. Declarations 13 & 14 affirm that the CFSP will not affect the responsibilities of the Member States for the formulation and conduct of their foreign policy. Member States are bound by decisions taken and obliged to ensure that their actions do not conflict with decisions taken under the CFSP, nonetheless, they thus retain full competence to act independently of the CFSP.

Would it matter, therefore, if the EU failed to adopt common sanctions if the Member States can adopt such measures themselves? In substance, most likely not. There is broad agreement among western states that action needs to be taken against Russia, even if states cannot agree exactly what that action could be. The rationale for the CFSP, however, has always been that through coordinated, unanimously agreed action the EU sends a more powerful political message than its 27 Member States do individually. While President Putin may not be particularly moved by the strength of the EU’s collective will, unity sends a powerful message to the rest of the world.