The EU adopted its 21st package of sanctions against Russia over the war in Ukraine on 23 July. It included 218 new designations – the largest batch in four years – bringing the number of blacklisted individuals and entities close to 3,000.
While the bloc’s sanctions machinery has never looked more formidable, it has also never looked more overstretched.
In March, the Council came within a hair’s breadth of failing to renew the entire list, then covering about 2,600 individuals and entities. Member states Hungary and Slovakia initially blocked the rollover, objecting to a handful of names and raising concerns about the way the process was being handled.
The list was eventually renewed on time. But the rush and uncertainty surrounding the process could prove troublesome.
At the height of the last-minute negotiations, RFE/RL’s Europe editor reported that no objections had been raised and that a “silent procedure” had started. It was not clear at the time whether this referred to a formal Council procedure, a preliminary no-objection stage or simply the fast-moving political negotiations.
Article 12 of the Council’s Rules of Procedure distinguishes between an ordinary written procedure, under which every government must communicate its vote, and the simplified written procedure known as the silence procedure.
That distinction was not apparent from the reporting as the deadline approached.
A 2015 European Parliament briefing said that the silence procedure could be “used for certain purposes, including the Common Foreign and Security Policy (CFSP). The relevant text is deemed to be adopted, if at the end of the period laid down by the Presidency no member has objected.”
A 2022 commentary from the General Secretariat drew a narrower distiniction, stating that legal acts in the area of CFSP cannot be adopted by the COREU silence procedure and must instead use the ordinary written procedure.
Whatever the reporting referred to, my conversations with officials close to the process reinforced the impression that the talks were rushed, politically pressured and marked by uncertainty over how the deadlock would ultimately be resolved.
The Council is now preparing to renew the listings again in September, this time with an additional twist. Based on conversations with officials familiar with the preparations, an extension of the review cycle for individual sanctions from six months to a year is under consideration.
Latvia’s foreign minister publicly proposed such a change in June. It would mirror the change already made to the EU’s economic sanctions against Russia – which the Council already extended for 12 months in June.
But sanctions against individuals differ from those against a country.
Sectoral measures against a country regulate broad areas of economic activity. Individual sanctions freeze the assets of named people and companies, restrict travel and prohibit others from making funds or economic resources available to them. Their legality depends on whether the factual grounds for each listing remain current and sufficiently substantiated.
If such a change is adopted, the formal renewal point for the same names may move from six months to a full year.
That is where the sanctions regime risks colliding with something more consequential than a Council Legal Service memorandum: the European Convention on Human Rights.
As early as 2002, the European Court of Human Rights addressed the responsibility of EU member states for intergovernmental measures adopted under the CFSP.
In Segi and Others versus 15 States of the European Union, the Court treated the disputed measure as an intergovernmental act and said that the responsibility of each participating state could be engaged by its involvement in preparing and adopting it, jointly with the other states.
The application was ultimately declared inadmissible because the applicants had not established that they were victims of a Convention violation. But the decision suggested that national governments do not necessarily disappear behind the Council once a unanimous foreign-policy decision has been made.
A decision to renew individual sanctions is not a faceless institutional act. It is the product of 27 national choices. Each member state participates in adopting it, and each may later be asked to account for its part in a measure found to have interfered unlawfully with fundamental rights.
This is not a theoretical concern.
In Tokareva versus the Council of the EU, the EU’s General Court annulled the continued listing of Maya Tokareva after finding that the Council had failed to establish that the grounds relied upon remained sufficient to justify keeping her under sanctions.
This judgment forms part of a growing body of case law in which EU judges have criticised the Council for maintaining listings after their original factual basis had weakened, become obsolete or ceased to establish the required legal connection.
Periodic review is supposed to prevent that from happening. This is not an administrative formality or a rubber stamp. It is the safeguard that requires the Council to ask whether the reasons that justified a listing six months ago still justify it today.
Extend the cycle to 12 months, and the interval during which an unjustifiable listing may remain in force without a scheduled renewal review doubles.
Add a rushed and politically pressured process, and the reassessment becomes not merely politically fragile but legally vulnerable.
The risk is that all 27 governments may be asked to renew listings that could prove difficult to defend, under conditions that may not allow the level of scrutiny such measures require.
The frustrating part, however, is that none of this is necessary.
Several member states are understood to be discussing names for possible delisting; individuals whose grounds for designation may have weakened or been successfully contested in courts, or whose supporting evidence has aged badly or been legally destroyed.
That suggests an obvious compromise: remove any listings the Council concludes it can no longer defend, keep everyone else, and vote properly on the rest.
Instead, the political atmosphere surrounding the renewals can make hesitation look like sabotage. That may be politically convenient, but it is counterproductive and damaging to the EU’s image, both internally and externally.
The point ultimately is not whether Slovakia or Hungary had admirable motives. Nor is it whether the people they wanted removed from the blacklist deserve sympathy. The rule of law is not reserved for sympathetic litigants or well-intentioned governments.
The question is whether political pressure displaced sufficient scrutiny and whether the Council can still defend every listing it is asking national governments to renew. That creates unnecessary risks if the file eventually lands before a judge.
None of this is an argument against sanctions. Restrictive measures remain one of the few instruments available to the EU as it seeks to counter Russia’s imperial ambitions, degrade its war machine and raise the cost of its aggression against Ukraine.
No serious member state wants the sanctions regime to unravel.
But a system this important cannot afford to rest on avoidable uncertainty. Every rollover conducted under excessive time pressure, every consensus secured through political pressure and every listing maintained after its evidential basis has expired gives ammunition to the lawyers preparing to challenge the regime.
It also creates potential exposure for every government that took part in adopting the measure.
Holding a proper review and ensuring that every listing remains defensible would not undermine a regime covering nearly 3,000 individuals and entities.
What may undermine it is the belief that political urgency allows Brussels to compromise the scrutiny its own rules are designed to protect.
The Council will protect the sanctions regime best by ensuring that every renewal can withstand the scrutiny it will inevitably face.
