By John Helmer, Moscow
The Grand Chamber of the Court of Justice of the European Union ruled unanimously today in Luxembourg that acts of the European Union are lawful without the requirement for evidence meeting any standard of proof or truthfulness. A press release will do.
The 15-judge court, headed by its president, the Belgian Koen Lenaerts and his deputy, the Italian Antonio Tizzano, have dismissed a challenge by the Russian oil company Rosneft to the legality of European Union (EU) sanctions imposed on the company on July 31, 2014. Click to read the text of the sanctions regulation.
Read today’s court judgement in full here.
Rosneft took its initial challenge to the lawfulness of the EU’s restrictions on its imports of capital and technology to the UK High Court in London in November 2014. The highest of the British courts, the Supreme Court, had already ruled in favour of the Iranian bank, Bank Mellat, in its challenge to the legality of UK and EU sanctions, arguing that the penalty of sanctions had been “irrational in its incidence and disproportionate to any contribution which it could rationally be expected to make to its objective.” See that judgement and story here.
Facing Rosneft’s challenge, a junior English judge decided it was safer to pass the buck to the court in Luxembourg. Read how he did that.
Weeks earlier, on September 18, 2014, three judges of the European Court of Justice (CJEU) had ruled that sanctions were illegal if the EU or its member states failed to give state reasons for their action, the evidence for which can be tested in court. Vagueness, secrecy, and the arbitrary exercise of discretion by government officials were all rejected in the case of sanctions against the Central Bank of Iran. For that story, click; for the full CJEU judgement, click again.
Today, the Luxembourg court endorsed the press release of the EU. That had declared the rationale of the sanctions against Rosneft this way: “the Heads of State or Government of the European Union condemned the unprovoked infringement of Ukrainian sovereignty and territorial integrity by the Russian Federation, that the Council urged the Russian Federation actively to use its influence over the illegally armed groups in order, inter alia, to permit full, immediate, safe and secure access to the site of the downing of the Malaysia Airlines flight MH17 in Donetsk (Ukraine), and that the Union had previously adopted measures in response to the illegal annexation of the Crimea and Sebastopol (Ukraine). In view of those factors, the Council concluded, in recital 8 of Decision 2014/512, that the situation remained grave and that it was appropriate to adopt restrictive measures in response to the Russian Federation’s actions destabilising the situation in Ukraine” (par 114).
Rosneft had challenged the veracity of these claims and the legality of the sanctions based on them. Rosneft’s argument was that the EU “when it adopted those provisions, failed to respect the obligation to state reasons, the rights of the defence, the right to effective judicial protection and the right of access to the file” (par 83).
Lenaerts, Tizzano and 13 of their fellow judges rejected this without dissent. They claim that rationality of law is qualified by political purpose: “The extent of the requirement to state reasons depends on the nature of the measure in question, and that, in the case of measures intended to have general application, the statement of reasons may be limited to indicating the general situation which led to the measure’s adoption, on the one hand, and the general objectives which it is intended to achieve, on the other” (par 120).
The court has also distinguished between the rights of individuals and the rights of corporations. “As regards restrictive measures affecting individuals, respect for the rights of the defence and the right to effective judicial protection requires that the competent Union [EU] authority disclose to the individual concerned the evidence against that person available to that authority and which is relied on as the basis of its decision” (par 121). A corporation like Rosneft, however, doesn’t have the same right, at least not in Luxembourg. Its right is limited to knowing what’s being done to it.
“While the statement of reasons required by Article 296 TFEU [Treaty on the Functioning of the European Union, 2007] must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the person concerned to ascertain the reasons for the measures and to enable the court having jurisdiction to exercise its power of review, that statement of reasons must, however, be adapted to the nature of the act at issue and to the context in which it was adopted. In that regard, it is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question and, in particular, in the light of the interest which the addressees of the measure may have in obtaining explanations. Consequently, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him to understand the scope of the measure concerning him” (par 122).
According to today’s ruling, the EU sanctions are lawful for no better reason than the EU has said so. “The declared objective of the contested acts [sanctions] was to increase the costs of the actions of the Russian Federation designed to undermine Ukraine’s territorial integrity, sovereignty and independence and to promote a peaceful settlement of the crisis. The contested acts [sanctions] accordingly describe the overall situation that led to their adoption and the general objectives they were intended to achieve… Consequently, the Council has, in this case, stated reasons for the contested acts that are sufficient” (par 125).
The court also dismissed Rosneft’s appeal, lodged last August, to re-hear and review claims made by the court’s Advocate-General, Melchior Wathelet, a Belgian politician, former judge of the European Court, and political patron of the court’s current chief judge Lenaerts.
Wathelet’s recommendations to the court to dismiss Rosneft’s case were issued on May 31, 2016. They can be read here. The court has now revealed its ruling to protect Wathelet from appeal on the ground that his friends on the bench have the discretion to accept his opinion without further ado. In today’s ruling the court ruled to say it preferred Wathelet because he had provided “all the information necessary to enable it to reply to the questions put by the referring court, and that all the arguments required for the decision on this case have been debated by the parties” (par 44).