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: Fundamental Rights as Constraints to the Power of the European Union to Impose Sanctions

Nicole Lazzerini[1]

ABSTRACT: The chapter argues that, in the post-Lisbon era, the protection of fundamental rights is a major driving force for the evolution of the Union’s power to impose sanctions. The dual role of fundamental rights as constraints on, and as justification for, the activity of the Union implies that their relationship with the power to adopt sanctions is ordinarily antagonistic and occasionally synergic. Whilst any sanctions imposed by the Union must comply with the fundamental rights granted by the EU Charter, the latter’s enforcement can sometimes be assisted by sanctions.

With a view to complement the analysis developed elsewhere in this Book, the chapter focuses on the role of fundamental rights as constraints on the Union’s power to sanction. The analysis is divided into two main parts. First, having regard to the general provisions of the EU Charter, the scope of the Union’s duty to respect fundamental rights will be outlined and the main structural implications on the power to sanction will be identified. Second, the specific substantive and procedural constraints that the EU Charter poses on the exercise of that power will be explored.

Rather than focus on specific fields or categories of sanctions, the chapter engages in a general mapping exercise of the fundamental rights that can act as general limits to the sanctioning power of the Union. Notably, the analysis considers three different expressions of the Union power to sanction, which are logically and chronologically connected: the shaping of sanctions, their actual imposition and, ultimately, the judicial review on them. Attention is paid to the protected scope of the relevant fundamental rights, including the possibility to impose restrictions on their enjoyment. The interactions with the system of protection established by the ECHR and the case-law of the Strasbourg Court are also considered.

A conclusive section summarizes the main findings and considerations stemming from the analysis developed.

KEYWORDS: EU Charter of Fundamental Rights - ECHR - ECJ - constraints — sanctioning cycle -judicial review

SUMMARY: 6.1. Introduction: the twofold relationship between fundamental rights and the power of the Union to impose sanctions. - 6.2. The duty of the Union to respect fundamental rights and its implications on the power to sanction. - 6.3. Substantive and procedural fundamental rights constraints in the sanctioning cycle: a mapping exercise. - 6.3.1 “Shaping” sanctions. - 6.3.2 Proceedings that may lead to the imposition of sanctions and related investigatory activities. - 6.3.3 Judicial review of sanctions. - 6.4. Concluding remarks.

: Introduction: the twofold relationship between fundamental rights and the power of the Union to impose sanctions

Fundamental rights have acquired a prominent role in the post-Lisbon EU legal order. The evolution of the direct power of the Union to sanction is not immune from this constitutional development.[2] A twofold relationship exists whereby the protection of fundamental rights acts ordinarily as a constraint on that power, and occasionally as a justification for its exercise. This reflects the dual role that fundamental rights play vis-d-vis the institutions and other bodies of the Union.

As is well established, fundamental rights made their appearance in the legal order of the (then) European Economic Community (‘EEC’) with a ‘negative’ function, notably as constraints on the actions of the EEC institutions. Back in the 1970s, in the absence of explicit references in the Treaties, the European Court of Justice (or ‘ECJ’) affirmed that it had jurisdiction to ensure the observance of the fundamental rights ‘enshrined in the general principles of Community law’, which constituted both parameters for the interpretation of Community law provisions and grounds for the review of the acts adopted by the EEC institutions. The Lisbon Treaty has given new impetus to the negative function of fundamental rights. In addition to confirming the duty of the Union to respect fundamental rights guaranteed as general principles of EU law, ’ it has provided the written ‘Bill of rights’ of the Union, the EU Charter of Fundamental Rights (hereinafter ‘Charter’ or ‘CFR’), with the same primary law status as the EU Treaties. Describing the nature of the postLisbon Union, the ECJ has stated that ‘at the heart of [the] legal structure [of the European Union] are the fundamental rights recognised by the Charter, respect for those rights being a condition of the lawfulness of EU acts, so that measures incompatible with those rights are not acceptable in the EU’.[3]

The ‘positive’ function of fundamental rights, i.e. as a justification for the activity of the Union, is much less developed, given that the Treaties do not entrust the EU institutions with a general competence on protecting and promoting fundamental rights, i.e. a competence transcending the specific fields of action foreseen by the Treaties. This does not mean, however, that that function is absent. Within the powers conferred on them by the Treaties, the EU institutions must promote the respect of the fundamental rights granted by the Charter. Moreover, over the years, specific objectives and powers related to the protection of fundamental rights - within the EU and in the relations with third States - have been gradually conferred on the Union. In addition, since the Amsterdam Treaty, Article 7 TEU provides the political institutions of the Union (notably, the European Council and the Council) with certain mechanisms to react to situations in which a Member State is seriously endangering the Union’s founding values, stated in Article 2 TEU to be: ‘respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’. In this context, the Council can potentially adopt sanctions consisting of the suspension of certain membership rights.

The positive and the negative functions of fundamental rights contribute to shaping (also) the scope, the objectives and the limits of the power of the Union to sanction. On the one hand, the EU institutions must always ensure that, when they adopt sanctions, the fundamental rights guaranteed by the Charter are respected. On the other hand, the lack of a general fundamental rights competence does not preclude that, in some instances, the relationship between the power of the Union to sanction and fundamental rights can be synergic, with the EU institutions relying on the former to assist the enforcement of the latter.

This second dynamic is well-consolidated in the external action of the Union, which since the 1990s has adopted ‘restrictive measures’ - such as arms embargoes, restrictions on sales, asset freezing orders and visa or travel bans - targeting (formally) Third States and (in substance) non-state entities and individuals responsible for, inter alia, human rights violations, or which represent a threat thereof.[4] However, the rule of law backsliding trends that have emerged in recent years in some Member States have drawn attention to the intra-EU dimension of the ‘positive’ relationship between fundamental rights and sanctions. For the first time, the Commission and the European Parliament have formally proposed the activation of the ‘preventive mechanism’ delineated in paragraph 1 of Article 7 TEU, respectively against Poland in December 2017 and against Hungary in September 2018. At the same time, the EU institutions, are exploring alternative routes to enforce Article 2 TEU, such as promoting an infringement procedure in relation to the violation of Treaty provisions that give expression to the Union’s values, or suspending certain payments - notably, in the context of structural funds - to Member States affected by generalized deficiencies as regards the rule of law. The preliminary ruling has also emerged as an important instrument to challenge domestic legislation affecting the independence of judges.

Importantly, however, the attention devoted to the potential of the infringement procedure as a means to uphold the founding values of the Union should not overshadow the role that this procedure - which may eventually lead to the imposition of penalties -5 can play as regards ‘ordinary’ violations of the fundamental rights granted in the EU. Whilst the alleged violation of the Charter is not enough to trigger an infringement procedure, the latter can be initiated against the Member

States’ failure to (correctly) implement or apply Union measures that give specific expression to the fundamental rights protected by the Charter.[5]

Given that the mechanisms and procedures through which the Union’s power to impose sanctions can assist the enforcement of fundamental rights are dealt with elsewhere in this Book, the focus of this chapter will be exclusively on the role of fundamental rights as constraints on that power. The analysis is divided into two main parts. First, moving from the system of fundamental rights protection that has resulted from the Lisbon Reform, the scope of the Union’s duty to respect those rights will be outlined, having regard to its implications on the power to sanction (section II). Second, the specific substantive and procedural constraints that the Charter poses on the exercise of that power will be identified and discussed (section III). The key findings of the analysis will then be summarized (section IV).

  • [1] Assistant Professor of EU Law, University of Florence.
  • [2] This chapter is concerned only with the direct power of the Union to impose sanctions; the adjective ‘direct’ will therefore be omitted in what follows. 2 EU fundamental rights are binding also on the Member States ‘only when they are implementing Union law’: see Article 51(1) of the EU Charter of Fundamental Rights and the interpretation provided by the ECJ in Case C-617/10 (Grand Chamber), Aklagaren v. Hans Akerberg Fransson, EU:C:2013:105, paras 21-22 (on which see, notably, D. Sarmiento, ‘Who’s afraid of the Charter? The Court of Justice, national courts and the new framework of fundamental rights protection in Europe’ (2013) Common Market Law Review 50, 1267). The Charter therefore acts as a limit to the Member States when they adopt sanctions that are required by EU primary or secondary law. However, this topic goes outside the scope of this chapter. 3 5 See Article 6(3) TEU. On this provision, see also infra, under section II. 4 See Article 6( 1) TEU.
  • [3] ’Opinion 2/13 (Full Court), Draft Accession Agreement of the EU to the ECHR, EU:C:2014:2454, para. 169. 2 See Article 51 ( 1 ) of the Charter. 3 See Article 3 TEU and G. De Burca. ‘Fundamental Rights and Citizenship’, in B. De Witte (ed.), Ten Reflections on the Constitutional Treaty for Europe (European University Institute, RSCAS/AEL, 2003). The Author maps the connections between the provisions of the Charter and the legal bases of the Constitutional Treaty, most of which can also be found in the TFEU. 4 See Article 7(3) TEU and, within this Book, the chapter by M. Bonelli. 5 One can note, in this respect, that the external fundamental rights competence of the Union appears to be broader than its internal counterpart: Article 3(5) TEU, on the objectives of EU external action, includes the contribution to ‘the protection of human rights, in particular the rights of the child’; moreover, Article 21(2) TEU states that the Union ‘shall work for a high degree of cooperation in all fields of international relations, in order to: (...) b) consolidate and support democracy, the rule of law, human rights and the principles of international law’.
  • [4] 2 "Disappointingly enough, at the time of writing this chapter, these procedures have not progressed further. 3 At present, the Commission and the Court of Justice have focused on the combination between Articles 2 and 19(1) TEU: see, notably, Case C-192/18 (Grand Chamber), Commission v. Poland (Indépendance des juridictions de droit commun), EU:C:2019:924, para. 98, and Case C-619/18 (Grand Chamber) Commission v. Poland (Indépendance de la Cour supreme), EU:C:2018:910, para. 47. The combination between Articles 2 and 19(1) TEU was inaugurated in the preliminary ruling in Case C-64/16 (Grand Chamber) Associaçâo Sindical dos Juizes Portugueses, EU:C:2018:l 17, para. 32 (on which see, notably, M. Bonelli, M. Claes, Judicial serendipity: How Portuguese judges came to the rescue of the Polish judiciary’ (2018) European Constitutional Law Review 14, 622. 4 "See the proposal for a Regulation of the European Parliament and of the Council on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States, COM (2018) 324 final. The European Parliament adopted its position at first reading on 4 April 2019. The following procedural steps can be monitored at 5 See Article 260 TFEU and, within this Book, the chapter by L. Prete. 6 See, notably, Case C-585/18 (Grand Chamber), A.K. (Indépendance de la chambre disciplinaire de la Cour suprême), EU:C:2019:982. 7 This is a corollary of the fact that the Charter cannot extend the competences conferred on the Union by the Treaties: see Article 6(1) TEU and Article 51(2) CFR. That would be the case if
  • [5] For some proposals to improve the potential of the infringement procedure in this respect, see O. De Schutter, Infringement Proceedings as a Tool for the Enforcement of Fundamental Rights in the European Union, study commissioned by the Open Society Foundation, October 2017, available online. 2 In fact, that duty also binds the institutions (or other bodies) of the Union when they perform functions ‘outside the framework of the European Union legal order’: see infra, in this section. 3 Emphasis added. 4 See G. Gaja, ‘The Protection of Human Rights Under the Maastricht Treaty’, in D. Curtin and T. Heukels (eds), Institutional Dynamics of European Integration: Essays in Honour of Henry G. Schermers (Martinus Nijhoff, 1994), 559.
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