In this second post in RENFORCE Blog’s special series on enforcement, Cedric Ryngaert highlights the Commission’s unsuccessful attempts to expand its limited enforcement powers over travel bans in the context of the recent adoption of the Global Human Rights Sanctions Regime. If centralized EU-level enforcement of travel bans is desirable, how might it be secured: through treaty change, or political pressure?
The EU aspires to be a global normative power, which wishes to disseminate its values beyond its borders. One of these values is the protection of human rights, which features prominently in Article 3(5) of the Treaty on European Union. When implementing its external human rights policy, the EU makes use of a variety of tools. One of these tools is the imposition of targeted sanctions or ‘restrictive measures’ on persons outside the EU involved in human rights abuses. Until this year, the EU only imposed ‘country-specific’ human rights sanctions, but on 7 December 2020, the Council adopted a EU Global Human Rights Sanctions Regime (GHRSR), pursuant to which any person involved in serious human rights abuses can be sanctioned (see for a first analysis: e.g., Eckes and Youngs).
On 2 March 2021, the EU Council imposed the first GHRSR targeted sanctions on individuals, in the case those involved in the detention of the Russian opposition politician Alexei Navalny. While these sanctions are imposed by the EU, they have to be implemented by the Member States: the latter deny entry to persons involved in human rights abuses and freeze their assets located on their territory. Thus, EU Member States serve as the arms and legs of EU sanctions policy. However, these arms and legs are not always moving as the EU would like. Some Member States may well lag behind in implementation, for practical or political reasons. This begs the question what enforcement powers the Commission has vis-à-vis non-compliant Member States, especially regarding travel bans.
In this post, I first outline the Commission’s limited enforcement powers over travel bans, as opposed to financial sanctions, in the current legal design of EU sanctions regimes. Subsequently, I highlight the Commission’s unsuccessful attempts to expand its enforcement powers over travel bans in the context of the adoption of the GHRSR. Finally, I argue that more centralized enforcement is desirable. However, as treaty change is unlikely, the EU institutions will have to exert additional political pressure to coax Member States into compliance. Such pressure is likely to materialize, given the Commission’s stated intention to better monitor the cohesive implementation of EU sanctions law.
The legal design of EU sanctions regimes: limited enforcement powers for the Commission
It is common in EU sanctions policy to impose restrictive measures on the basis of both an EU Council decision and an EU Council regulation. Also the GHRSR consists of a Decision and a Regulation. The decision provides the general political and legal basis, while the regulation ensures the uniform application of sanctions across the EU. The use of these different legal instruments is not just a technicality, but has important consequences for sanctions implementation and enforcement. If sanctions are laid down in a regulation, they apply automatically in the EU Member States’ legal order. The only thing the Member State needs to do is to issue ‘a sanctions order stating that it is a criminal offence to violate the regulation’ (see here on the relevant Dutch policy). In contrast, if particular sanctions are only laid down in a decision, they first have to be transformed into national law before they can apply. What is more, insofar as sanctions are laid down in a regulation, the Commission can initiate infringement proceedings (on the basis of Articles 258-260 TFEU) against non-compliant Member States. If sanctions are only laid down in a decision, the Commission does not have the legal power to initiate such proceedings.
Entry bans are in principle only governed by decisions, pursuant to Article 29 TEU (‘The Council shall adopt decisions which shall define the approach of the Union to a particular matter of a geographical or thematic nature.’). Financial sanctions, however, can be governed by any ‘necessary measure’, pursuant to Article 215 TFEU (‘Where a decision [under Article 29 TEU] 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 practice, the Council uses regulations in respect of financial sanctions, with a view to ensuring the uniform application of these sanctions in all Member States.
This state of affairs means that the Commission can use its enforcement powers against Member States in case of non-compliance with financial sanctions. This includes the initiation of infringement procedures before the Court of Justice of the EU. However, such EU enforcement powers are not available in case of non-compliance with entry bans. Admittedly, under Article 29 TEU, Member States are required to ‘ensure that their national policies conform to the Union positions’ on entry bans, but the EU cannot legally enforce compliance with these positions.
The EU Global Human Rights Sanctions Regime: an unsuccessful attempt of the Commission to expand its enforcement powers
The legal design of the GHRSR mirrors the design of previous sanctions regimes. While the relevant Regulation contains relatively detailed rules on asset freezes, it keeps silent on travel bans, which are only addressed in Article 2 of the Decision. This means that the Commission cannot enforce EU travel bans imposed on individuals involved in human rights abuses abroad. At most, the EU can exert political pressure on recalcitrant Member States.
Surprisingly, however, the Commission had proposed to incorporate in the GHSRSR Regulation the imposition of travel bans for sanctioned persons. This proposal was probably informed by an incident occurring in early 2020, when the Spanish Transport Minister met the Venezuelan vice-president Delcy Rodríguez at Madrid airport. Rodríguez was subject to an EU travel ban (see here), and accordingly, Spain appeared to violate EU law (although the Spanish Minister said that he had met her ‘only to inform her that she could not stay on Spanish territory because of the EU-wide ban’). The incident led to a furor in the European Parliament, but the EU’s High Representative for Foreign Affairs and Security Policy and Vice-President of the Commission, Josep Borrell, had to admit that the Commission did not have the competence to initiate infringement procedures for travel ban violations, nor for violations of arms embargoes for that matter (see here for the Euractiv report on the incident).
From a uniform enforcement perspective, the Commission’s proposal was certainly laudable. However, it soon became clear that there was sizable resistance from the Member States, including the Netherlands, against incorporating travel bans in a regulation (see this briefing of the Dutch Cabinet to the Dutch Parliament). Such a move would clearly strengthen the position of the Commission to the detriment of the Member States. Moreover, it appears to be in tension with the very text of Article 215 TFEU. Thus, it came as no surprise that the Council eventually decided to maintain its traditional practice of incorporating travel bans only in the sanctions decision.
Strengthening EU enforcement: treaty amendment or political pressure?
Under current EU sanctions regimes, including the GHRSR, the Commission remains legally powerless if Member States flout EU-imposed travel bans. To remedy this powerlessness, in an ideal world, the remit of Article 215 TFEU may have to expanded through treaty amendment. In a revised version of that article, necessary measures (including regulations) could also be adopted in relation to travel bans and not just in relation to the interruption of economic and financial relations. An amendment of the TFEU is a long shot, however.
In the meantime, the Commission’s legal powerlessness to enforce entry bans does not mean that that the EU institutions have no influence over Member States’ implementation practice. Already at the time of the Spanish incident, Joseph Borrell indicated that he was in close contact with EU leaders ‘to ensure that these sanctions are being applied in a homogeneous way in all Member States’ (Euractiv report). And as can be gathered from a recent Communication of 19 January 2021, the Commission will strengthen its monitoring of the cohesive implementation of EU sanctions law, arguably including travel bans, in the years to come. In practice, in 2021, the Commission ‘will develop a database, the Sanctions Information Exchange Repository, for the prompt reporting and exchange of information between Member States and the Commission on the implementation and enforcement of sanctions’, and ‘will work with Member States to establish a single contact point for enforcement and implementation issues which have cross-border dimensions’ (Communication, p. 17). Clearly, the Commission is turning up the heat for the Member States. While it cannot initiate infringement procedures, it can, and should induce compliance through enhanced political pressure, including naming and shaming unwilling Member States.