This week I attended the hearing at the Court of Justice of the European Union (CJEU) in case C-71/15 (Rosneft). This is one of several cases brought by the Russian energy company Rosneft against the EU sanctions regime established following the Russian military intervention in Crimea. The case has its basis in a request for preliminary ruling by the High Court of Justice (England & Wales), Queen’s Bench Division. In the reference, the High Court of Justice asks the CJEU to determine the validity of several provisions of the EU economic sanctions against Russia.
As the legal issues in play in this case are very closely connected with the precise legal nature of the sanctions challenged, it is necessary to first describe the contested parts of the EU sanctions regime in some detail. Then I will go through the submissions of the parties, and offer some preliminary analysis of the arguments presented. My focus is the same as that of the oral hearing; on the issue of the jurisdiction of the CJEU to review sanctions adopted under the EU’s Common Foreign and Security Policy (CFSP). Before we start I must also add a small disclaimer: this report is based on my own notes and recollections, and there may thus be inaccuracies, misunderstandings, or plain errors.
The contested parts of the EU sanctions regime
The contested parts of the EU sanctions regime in this case are the measures “targeting sectoral cooperation and exchanges with Russia” – which I will refer to as the sectoral measures. These sectoral measures are laid down in Council decision 2014/512/CFSP and Council regulation 2014/833/EU (links to latest consolidated versions). Essentially, these provisions prohibit EU persons, natural or legal, from engaging in contractual relations with certain Russian state-owned companies and banks, and from providing such companies and banks access to financial markets.
Sectoral measures may be contrasted with the targeted sanctions laid down in Council decision 2014/145/CFSP and Council regulation 2014/269/EU (links to latest consolidated versions). Such targeted sanctions directly affect named Russian natural and legal persons (not including Rosneft) by inter alia obliging European financial institutions to freeze their assets. With regard to the sectoral measures, on the other hand, Rosneft primarily feels the sting of them through the lack of access to European suppliers, consultants, credit institutions, etc.
This distinction between targeted and sectoral sanctions is also reflected in TFEU article 215. According to that provision the Union may in the form of a regulation adopt measures providing for ” the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries” (i.e. sectoral measures) or “restrictive measures […] against natural or legal persons” (i.e. targeted sanctions). Since sectoral measures are formulated as prohibitions on EU citizens and undertakings from engaging in such activities, they only seems to affect Rosneft indirectly; it is their EU partners that are now prohibited from doing business with Rosneft. Note the use of the word seems in the previous sentence. Rosneft argues that it is also directly affected by the sectoral measures, and that they should be regarded as targeted sanctions. Still, the following summary of the hearing more or less presupposes that the sanctions are sectoral measures – which was also generally presupposed during the hearing.
A final peculiarity concerning CFSP sanctions regimes is that they are enacted through the use of two separate legal instruments. First, by a Council decision under TEU article 29. Second, and following such a decision, the sanctions are implemented within the internal market by means of a Council regulation under just-mentioned TFEU article 215. In the present case the relevant instruments are Council decision 2014/512/CFSP and Council regulation 2014/833/EU, which I will refer to in the following as “the CFSP decision” and “the regulation”, respectively. The relationship between the regulation and the CFSP decision was a key factor in relation to many of the issues discussed during the oral hearing in Rosneft.
The CFSP decision is adopted under a provision in the CFSP chapter of the TEU, namely article 29. This has certain consequences. First, legislative acts are precluded under the CFSP, see TEU article 31(1) i.f. Second, being adopted under the CFSP chapter the jurisdiction of the CJEU to review the decision is generally excluded according to TFEU article 275(1). Third, while the EU member states “shall ensure that their national policies conform to” the CFSP decision, the decision is not binding upon persons (natural or legal).
The regulation adopted under TFEU article 215 implements the CFSP decision within the internal market. That regulation is not a CFSP measure. This means that it is binding in its entirety, also on natural or legal persons, and directly applicable within the legal system of the EU member states (TFEU article 288(2)). Moreover, the general jurisdiction of the CJEU to review acts of the Union institution should therefore apply. (But see the Commission’s arguments to the contrary discussed below.)
What kind of provisions the two instruments should contain when the Union imposes sanctions is less clear. The only guidance we seem to get from the constituent treaties is that (a) legislative acts cannot be enacted in the form of CFSP decisions, and that (b) when a CFSP decision “provides for the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries” the Council shall adopt “the necessary measures” in the form of a regulation under TFEU article 215. In practice, the wording of the CFSP decision and the regulation is more or less identical. This is also the case here. The provisions Rosneft is challenging are almost word-for-word identical in the CFSP decision and the regulation.