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Report on the legality of the EU sanctions calls for procedural improvements and continued cooperation post-Brexit
3.2.17
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A new report by the UK House of Lords' EU Committee says that while sanctions against individuals, companies or institutions in non-EU states "serve an important foreign policy objective in persuading States and regimes to change behaviour," are a number of improvements that need to be made to the "listing" process, in particular regarding transparency and standards of proof.

The report notes that with regard to Brexit:

"The UK has contributed greatly to the substance and quality of improvements in the sanctions process over the last few years. It is, therefore, particularly important that the UK should remain able to align itself with EU sanctions post-Brexit. National legislation to achieve this must be put in place."

See: House of Lords European Union Committee: The legality of EU sanctions (pdf)

Contents

  • Summary
  • Chapter I: Introduction
  • Chapter 2: EU sanctions policy and procedure
  • Chapter 3: The legality of the EU's sanctions listing procedure
  • Chapter 4: Our analysis
  • Appendix 1: List of Members and declarations of interest
  • Appendix 2: List of witnesses

Summary (from the report)

This report is the result of a short inquiry into the legality of the EU sanctions listing process, conducted by the Justice Sub-Committee of the European Union Committee. The purpose of the inquiry was to understand better why EU sanctions were being struck down by the EU courts, and to investigate whether improvements could be made to the sanctions listing process.

EU sanctions serve an important foreign policy objective in persuading States and regimes to change behaviour. They also need to respect the due process rights of those who are sanctioned, as guaranteed by the EU Charter of Fundamental Rights. There is a tension between these two principles, and the large number of listings that have been annulled by the General Court to date attests to this difficulty.

That said, the sanctions listing process has improved considerably. In the past, targeted individuals or companies were neither informed that they had been listed nor provided with a statement of reasons for their listing. Since the Kadi II judgment of the Court of Justice of the EU in 2013, the Council secretariat, and Member States within the Council, have placed far greater emphasis on improving the quality of evidence supporting sanctions listings. The UK has led in achieving this. Further improvements include greater reliance on opensource evidence, which can be disclosed to the listed individual or company, annual reviews of all EU sanctions, and a greater willingness to lift sanctions once substantial progress in their objectives has become evident.

But, as the Government told us, there is still a way to go.

It is particularly important that the Council codifies the standard of proof it applies when it adopts sanctions listings. This would bring much-needed transparency to the listing process, as well as public assurance that the same standard of proof is applied by all Member States in the Council, which is not currently the case.

We conclude that the Council should be less willing to re-list on amended reasons those individuals and companies who have succeeded in having their original listings struck down by the EU courts for lack of evidence. We are concerned that this practice gives rise to a perception of injustice, namely that there is no effective judicial remedy against sanctions listings. The EU courts should have a procedure for considering confidential evidence supporting sanctions listings. We are concerned that the newly introduced ‘closed material procedure’ may not be taken up by many Member States.

An Ombudsperson for EU sanctions, similar to the role of the UN Ombudsperson for the Al Qaida Sanctions Committee, could help to improve the fairness of the sanctions listing procedure. We ask the Government and the Council to give their views.

We conclude that parliamentary scrutiny of EU sanctions can perform a valuable role in illuminating the sanctions listing process, even though in most cases it takes place after sanctions listings are adopted by the Council. Parliament’s role will be enhanced by confirmation by the EU Council’s Legal Service that open-source information can be made public, and so can be made available to Parliament. This contradicts the Government’s stance, and we ask the Government to make available to Parliament all open-source evidence supporting new listings and re-listings in future.

Finally, we note the importance of the UK continuing to be able to engage with and align itself with EU sanctions post-Brexit.

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