1. Which are the procedures for the incorporation of Security Council Resolutions imposing sanctions into the internal legal order of your State? Are they incorporated through legislation, regulations or in any other way? Has the implementation given rise to any constitutional or other legal problems at national level? Is there any relevant case-law?

(March 2006)

The EU as a rule implements Security Council resolutions imposing sanctions based on Chapter VII of the UN Charter. In June 2004, the Council adopted the Basic Principles on the Use of Restrictive Measures (Sanctions) [Council document 10198/1/04 Rev 1] stating, inter alia:

“We will ensure full, effective and timely implementation by the European Union of measures agreed by the UN Security Council.”

According to the Guidelines on Implementation and Evaluation of Restrictive Measures (Sanctions) in the Framework of EU Common Foreign and Security Policy (CFSP) of December 2003 the EU aims to have the necessary implementing legislation in place without delay.

The procedure usually involves two steps. First, under Article 15 EU Treaty, the Council adopts a Common Position. Second, depending on the substance matter, the implementation of this Common Position is either carried out at Community or at national level.

Measures interrupting or reducing, in part or completely, economic relations with one or more third countries are in nearly all cases implemented by means of a Community Regulation based on Articles 60 and 301 of the Treaty establishing the European Community. Such Regulations have general application and precedence over conflicting provisions of the law of the Member States. They are binding in their entirety and directly applicable in all Member States.

Other measures generally included in a Council Common Position falling within Member State competence, such as arms embargos and travel restrictions, are implemented by the Member States. Under Article 15 second sentence EU Treaty, Member States shall ensure that their national measures conform to the common CFSP position, leaving a choice of form to the Member States.

Implementation of UN Security Council resolutions by means of a Community Regulation gave rise to several cases before the European Court of Justice (ECJ) and/or the Court of First Instance (CFI).

As regards the UN embargo on trade with Iraq (SC Resolution 661 of 6 August 1990), the CFI rejected an application under Article 288 (ex 215) paragraph 2 EC by the German company Dorsch Consult for compensation for the damage allegedly suffered as a result of the adoption of the implementing Council Regulation (EEC) No. 2340/90 of 8 August 1990. The CFI [CFI, Judgment of 28 April 1998, Case T-182/95 – Dorsch Consult v. Council and Commission, ECR 1998 II-667], whose judgment was upheld by the ECJ on appeal [ECJ, Jugdment of 15 June 2000, Case C-237/98 P – Dorsch Consult v. Council and Commission, ECR 2000 I-4941], elaborated on the conditions of non-contractual liability of the Community. It rejected the application because the applicant had not demonstrated to have suffered actual and certain damage.

Council Regulation No. 1432/1992 of 1 June 1992 implementing the UN trade embargo against Serbia and Montenegro under Security Council Resolution 757 of 30 May 1992 gave rise to two cases. In Centro Com, the ECJ held that this Regulation had established a system of mutual confidence between Member States as regards the emission of certificates allowing the transport of goods that had been qualified by the UN Committee on Sanctions as serving humanitarian or medical purposes in Serbia and Montenegro. Accordingly, a Member State was prevented under Community law to give instructions to its banks not to release Yugoslav financial means from its accounts that could be used for paying such imports from another Member State to Serbia and Montenegro [ECJ, Judgment of 14 January 1997, Case C-124/95 – Centro Com, ECR 1997 I-114]. The other case – Aulinger - is currently pending before the ECJ. The Court is asked to determine whether Article 1 (d) of the said regulation prohibited the so-called “broken traffic”, i.e. the commercial transport of persons from the EU to the border of Serbia and Montenegro by an EU company, while another company located in Serbia and Montenegro would ensure the transport of these persons from the border to a destination inside the latter’s territory [Preliminary Reference by the Oberlandesgericht Köln of 21 August 2003, Case C-371/03, Aulinger ./. Federal Republic of Germany, pending.]

UN Security Council Resolution 820 of 17 April 1993, tightening the above mentioned embargo against Serbia and Montenegro, was implemented by Council Regulation No. 990/1993 of 26 April 1993. Upon reference by an Irish Court, the ECJ interpreted in Bosphorus Article 8 of this Regulation in the light of the above mentioned UNSC resolution as covering airplanes that are owned by a company located in Serbia and Montenegro, even if they are leased to a non-related third company situated outside Serbia and Montenegro for four years [ECJ, Judgment of 30 July 1996, Case C-84/95 – Bosphorus v. Minister for Transport, Energy and Communications, ECR 1996, I-3953]. In Ebony Maritime, a tanker flying the Maltese flag who had taken course towards the coastline of Montenegro was stopped from doing so by NATO/WEU forces on the High Sea and handed over to the Italian authorities in Brindisi. The latter ordered the vessel to be impounded and the cargo to be confiscated. Upon reference the ECJ held that under Article 9 of Regulation No. 990/993 the competent authorities of a Member State must detain all vessels suspected of having breached sanctions imposed against the Federal Republic of Yugoslavia, even if they are flying the flag of a non-member country, belong to non-Community nationals or companies, or if the alleged breach of sanctions occurred outside Community. Likewise, national authorities may, under the second paragraph of Article 10 of the Regulation, confiscate those vessels and their cargoes once the infringement has been established. Articles 9 and 10 of the Regulation were found to be applicable once a vessel is within the territory of the Member Staten and thus under the territorial jurisdiction of that State, even if the alleged infringement occurred outside its territory [ECJ, Jugment of 27 February 1997, Case C-177/95 – Ebony Maritime SA and Loten Navigation Co. Ltd v Prefetto della Provincia di Brindisi and others, ECR 1997 I-1111].

Finally, some cases concerning Regulation (EC) No 881/2002 on financial sanctions imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, Regulation (EC) n° 2580/2001 on specific measures directed against certain persons and entities with a view to combating terrorism, and Regulation (EC) No 872/2004 on financial sanctions targeting former President Taylor of Liberia and associated persons that implement relevant UN Security Council resolutions are pending before the Court of First Instance of the European Communities (CFI) (see also answer to question 7).

2. Does the choice depend on the content and the legal nature of the Security Council Resolution?

Legally binding Security Council decisions, adopted under Chapter VII of the UN Charter, are implemented in the European Union due to their obligatory legal nature. The choice of procedure and form depends on the nature of the measure that must be taken (cf also answer to question 1).

3. When sanctions are imposed for a fixed period of time which is not renewed, are they tacitly repealed within your domestic legal order or is any normative action required?

As a rule, EU Council Common Positions and Regulations cease to apply either on the date of expiration provided therein, without needing any further decision, or, in the absence of an expiry date, when they are repealed. The 2003 Guidelines state in this regard:

“A specific situation exists, when the Security Council decides on measures which expire by a particular date. In such a situation, correct implementation of the UN measures requires immediate legislative action, if the measures are renewed just before the expiration date. In order to prevent expiration of the restrictive measures in cases where renewal is called for, the Council should not copy the expiration date in the implementing Regulation.”

Accordingly, the Regulations will normally remain in force and require normative action to be repealed, if the Security Council fails to renew them.

4. When a Security Council Resolution imposing an export embargo provides for exceptions while not establishing a committee to authorise such exceptions, does the incorporating act appoint a national authority, which is competent to authorise export?

The Regulations imposing sanctions include lists of competent authorities which are empowered to grant exemptions. Whereas certain implementing powers are granted to the Commission, it is common practice that the Regulations provide that authorities of the Member States are competent to take decisions on requests for exemptions.

5. Are Sanctions Committee decisions specifying Security Council sanctions or setting conditions for their activation incorporated into domestic law?

Where the UN Security Council resolution provides that certain decisions can only be taken by a UN Sanctions Committee, the Regulations are drafted accordingly. For example, the Commission is empowered to adopt the measures necessary to implement designations of persons, groups and entities made by the Al Qaeda and Taliban Sanctions Committee, in order to have funds and assets frozen in accordance with Regulation (EC) No 881/2002.

If exemptions must be granted by a UN Sanctions Committee, the Regulations stipulate that requests must be sent to the competent authorities, which will then take the matter to the Sanctions Committee and inform the applicant of the decision. In order to provide the clarity that is needed, any conditions for granting exemptions laid down in the UN Security Council resolution are included in the Regulation.

6. Have there been cases where the act incorporating sanctions in the domestic legal order was challenged in court for being in violation of human rights? For example, have national courts assumed jurisdiction in cases where sanctions are challenged by individuals affected by sanctions: a. if implemented through EU regulations? b. if implemented directly at national level?

In the Bosphorus case (see note 1), a company challenged the prohibition contained in Article 8 of Council Regulation No. 990/1993 to use an aircraft leased from a Yugoslav enterprise as violating his right to property and the freedom to pursue a business. The ECJ found [ECJ (note 6), paras. 22-26]:

“22 Any measure imposing sanctions has, by definition, consequences which affect the right to property and the freedom to pursue a trade or business, thereby causing harm to persons who are in no way responsible for the situation which led to the adoption of the sanctions.

23 Moreover, the importance of the aims pursued by the regulation at issue is such as to justify negative consequences, even of a substantial nature, for some operators.

24 The provisions of Regulation No 990/93 contribute in particular to the implementation at Community level of the sanctions against the Federal Republic of Yugoslavia adopted, and later strengthened, by several resolutions of the Security Council of the United Nations. The third recital in the preamble to Regulation No 990/93 states that "the prolonged direct and indirect activities of the Federal Republic of Yugoslavia (Serbia and Montenegro) in, and with regard to, the Republic of Bosnia-Herzegovina are the main cause for the dramatic developments in the Republic of Bosnia-Herzegovina"; the fourth recital states that "a continuation of these activities will lead to further unacceptable loss of human life and material damage and to a further breach of international peace and security in the region"; and the seventh recital states that "the Bosnian Serb party has hitherto not accepted, in full, the peace plan of the International Conference on the Former Yugoslavia in spite of appeals thereto by the Security Council".

25 It is in the light of those circumstances that the aim pursued by the sanctions assumes especial importance, which is, in particular, in terms of Regulation No 990/93 and more especially the eighth recital in the preamble thereto, to dissuade the Federal Republic of Yugoslavia from "further violating the integrity and security of the Republic of Bosnia-Herzegovina and to induce the Bosnian Serb party to cooperate in the restoration of peace in this Republic".

26 As compared with an objective of general interest so fundamental for the international community, which consists in putting an end to the state of war in the region and to the massive violations of human rights and humanitarian international law in the Republic of Bosnia-Herzegovina, the impounding of the aircraft in question, which is owned by an undertaking based in or operating from the Federal Republic of Yugoslavia, cannot be regarded as inappropriate or disproportionate”.

The President of the Court of Justice [Order of the President of the Court of 13 November 2000, Case C-317/00 P – Invest Import and Export GmbH and Invest Commerce v. Commission of the European Communities, ECR 2000 I-9541] followed a similar line of reasoning in its order rejecting an appeal of the “Invest Import GmbH” against an order a Chamber President of the CFI [Order of the President of the Second Chamber of the Court of First Instance of 2 August 2000, Case T-189/00 R – Invest Import and Export GmbH and Invest Commerce v. Commission of the European Communities, ECR 2000 II-2993] in the context of the Yugoslav financial embargo (Regulations No. 1294/99 and No. 723/2000). For cases on UN sanctions directed against individuals which are implemented on the European level see answer to question No. 7.

7. Are there decisions of national courts or state practice concerning the relationship between sanctions towards individuals and the human rights of these individuals?

A number of applications against Regulation (EC) No 881/2002 2002 on financial sanctions imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and Regulation (EC) n° 2580/2001 on specific measures directed against certain persons and entities with a view to combating terrorism are pending before the Court of First Instance of the European Communities (CFI). Very recently an application has been lodged before the CFI against Regulation (EC) No 872/2004 on financial sanctions targeting former President Taylor of Liberia and associated persons. These applications were lodged by persons and entities designated by a UN Sanctions Committee in accordance with a UN Security Council resolution. The CFI has up to now decided on requests for interim measures [See, in particular, Order of 7 May 2002 in Case T-306/01, Aden et al. v. Council and Commission], but has not rendered judgement in any of these cases.