Does the Court of Justice of the European Union Respect the Limits of EU Competence?

 

 

Vilija Vėlyvytė, British Academy Post-Doctoral Fellow, Somerville College, University of Oxford

 

Photo credit: civarmy, by wikipedia

 

My new book, ‘Judicial Authority in EU Internal Market Law: Implications for the Balance of Competences and Powers’ (Hart Publishing 2022), examines how the Court of Justice of the European Union expands EU competences through the interpretation of EU internal market law.

 

Much has been written about the EU’s so-called ‘competence creep’, describing the extension of EU competence (or power) to regulate the internal market into the areas in which the EU has not been granted explicit competence to act, such as public health, social security, and others. That discussion criticizes the EU legislature – Commission, Council and Parliament acting together – for failure to respect the limits of EU competence and the Court for failure to police those limits. Yet it largely overlooks a related, and equally important, question: does the Court itself observe the limits of EU competence in the interpretation of the rules of the internal market laid down in the Treaties? This question lies at the heart of my new book. The inquiry conducted in the book exposes the scale of the problem of the EU’s competence creep and demonstrates that the exercise by the Court of its interpretative authority is its major, and often dominant, cause.

 

The limits of EU competence are governed by the principles of conferral, subsidiarity and proportionality. Whilst the principle of conferral defines the scope of EU competence, the principles of subsidiarity and proportionality limit its exercise. The book examines to what extent the Court observes these principles in the interpretation of EU free movement rules. It argues that the Court’s observance of the three principles has been inconsistent, thereby creating constitutional tensions in the EU’s relationship with the Member States and upsetting the institutional balance of powers between the EU legislature and judiciary.

 

Observance of Conferral in Free Movement Case Law

 

According to the principle of conferral (Art 5(2) TEU), the EU can act only within the scope of the competences that Member States have conferred upon it in the Treaties. The Treaties contain a list of EU competences, dividing them into exclusive, shared and supplementary (see here). Notably, the EU does not have any real powers in the areas belonging to its supplementary competences, such as, for example, healthcare, education and, for the most part, social policy. Its action in these areas is limited to the adoption of measures of a recommendatory character.

 

The phrasing of the principle of conferral in the Treaties suggests that there is a clear line as to what the EU can and cannot do. But in reality this is far from true. In the way conferral is interpreted by the Court, it allows the EU to interfere into the areas that in principle fall outside the scope of its competences to the extent that such interference stems from the exercise of a competence that has been conferred upon the EU. For instance, the EU has not been granted competence to legislate in the area of public health. Yet it can enact such legislation as long as it contributes to the functioning of the internal market (see Tobacco Advertising II judgment, concerning the validity of EU directive on the advertising and sponsorship of tobacco products).

 

EU legislation aside, Member States must comply with the rules of the internal market laid down in the Treaties in all areas, regardless of whether these belong to EU or Member State scope of competence. So, for example, Member States retain the competence to regulate the exercise of collective labour rights, namely the right to collective bargaining and right to strike. However, they must regulate these rights in a way that does not violate the EU’s economic freedoms – freedom of establishment and of provision of services in particular (see Viking and Laval judgments).

 

The book argues that if conferral is to have a meaningful normative function in EU law, there needs to be a limit to how far EU internal market law can encroach into the areas of competence that should in principle be exempted from any binding interference on behalf of the EU. In the context of the judicial interpretation of free movement law, that limit lies in the conditions that trigger the application of free movement law. These are the conditions that have to be satisfied for the matter to fall within the scope of free movement. For instance, in order to benefit from the EU’s economic freedoms, the activities in question have to be of an economic, as opposed to social, nature and the challenged national law or practice has to constitute a restriction on those activities.

 

When interpreting the meaning of these conditions in a given case, the Court should adopt a systemic approach, contextualising them in the requirements of the principle of conferral. This presupposes a judicial interpretation of the concepts of ‘economic activity’ and ‘restriction’ that balances the objectives of the internal market inherent in these concepts with the concerns relating to the protection of national competence and regulatory autonomy. Such balancing exercise should be performed whenever free movement law collides with policy areas that are constitutionally sensitive from the EU law point of view. As a consequence, activities which have some economic features but are otherwise heavily regulated at the national level in the interests of social policy and solidarity, would fall outside the scope of the economic freedoms. A prominent example of such activities is the provision of public healthcare and education services.

 

Having conducted an inquiry into free movement case law involving three sensitive areas of national policy – healthcare, education and collective labour law, the book finds that the Court has systematically failed to engage in any meaningful reflection of competence concerns in the interpretation of the scope of free movement rules. This practice places the Court in tension with the principle of conferral.

 

The case law has also diminished the effectiveness of the legislative dimension of the principle of conferral. Specifically, it has opened up the possibility for matters that had been reserved to the regulatory prerogative of the Member States to be addressed at the EU’s legislative level through the functionally broad provisions of the Treaties (legal bases) dedicated to the regulation of the internal market. For instance, by holding that the provision of public healthcare is an economic activity, the Court sent a signal to the EU legislature that healthcare, as a service, could be legitimately legislated on under Art 59 or Art 114 TFEU. This enabled the adoption of EU Directive on Patients’ Rights, which governs access to cross-border healthcare, notwithstanding that EU-wide harmonisation in the area of public health is excluded by Art 168 TFEU.

 

Observance of Subsidiarity and Proportionality in Free Movement Case Law

 

The principles of subsidiarity (Art 5(3) TEU) and proportionality (Art 5(4) TEU) govern the exercise of EU competences. Subsidiarity applies to the areas of competence that are shared between the EU and Member States. It sets out the conditions under which the competence concerned should be exercised by the EU rather than Member States. Essentially, it stipulates that policy decisions should be taken at the level of the Member States unless action at the EU level could be more effective. Proportionality, on the other hand, controls the intensity of EU action. It limits intervention by the EU to what is necessary in light of the objectives pursued.

 

The book demonstrates that both principles are designed to protect national regulatory autonomy in politically sensitive areas of EU action, but they do so in slightly different ways. If subsidiarity is primarily concerned with the protection of the scope of national regulatory autonomy, proportionality ensures that EU regulatory intervention does not intrude excessively into the various values and interests protected via the exercise of national regulatory autonomy.

 

How do the principles of subsidiarity and proportionality manifest themselves in the judicial interpretation of the Treaties? They do at the stage of the judicial inquiry into the justification of national measures restrictive of free movement. The degree to which restrictive measures can be justified depends on the standard of judicial review employed by the Court. Accordingly, the standard of judicial review determines the space left for domestic regulatory action in the situation concerned. It thus affects both the scope of national regulatory autonomy (subsidiarity) and the interests protected within its exercise (proportionality). So, for example, when free movement law is construed to require that trade unions employ the ‘least restrictive’ means in negotiations with foreign businesses, this inhibits their autonomy to regulate the terms and conditions of employment as well as their ability to protect workers’ interests. This implicates both subsidiarity and proportionality.

 

The Court has been inconsistent in its observance of the principles of subsidiarity and proportionality across the policy areas studied in the book.

 

In three of the four areas – healthcare, education and collective labour law, the Court has employed a high standard of review of national measures, focused on the test of necessity. This approach is well illustrated by the Bressol judgment. The case concerned Belgian measures restricting foreign students’ access to some of the oversubscribed medical programmes. For context, in some of these programmes foreign students (mainly French) would make up more than 80% of the class. This situation raised concerns about the potential shortage of health specialists in Belgium and, more broadly, about the financial sustainability of the country’s higher education system, which was based on free and open access. The Court held that in order to be justified, government measures had to be appropriate and proportionate. Notably, the assessment of proportionality had to take into account the possibility that the government might have been able to achieve its regulatory goals with less restrictive means. Finally, the government was required to provide ‘an objective, detailed analysis, supported by figures, … capable of demonstrating, with solid and consistent data, that there [were] genuine risks to public health’ (para 71).

 

Essentially, the Court’s reasoning made clear that the Belgian higher education policy could only be pursued by employing measures that did not restrict the free movement of students in the EU.

 

This approach can be contrasted with the one employed by the Court in the gambling case law. Governments often limit access to their gambling markets for foreign operators, often by monopolising the operation of gambling. (This keeps the revenues derived from gambling within national borders.) The Court’s review of these types of measures is highly deferential. It is grounded in respect for national regulatory autonomy in the gambling sector. In that connection, the Court holds that Member States are entitled to a margin of appreciation, or discretion, when regulating gambling activities. Accordingly, ‘it is for those authorities to consider whether, in the context of the aim pursued, it is necessary to prohibit activities of that kind, totally or partially, or only to restrict them and to lay down more or less rigorous procedures for controlling them’ (see Zenatti judgment, para 33).

 

As a result, governments are allowed to bar foreign operators from entering their gambling markets as long as such restrictions are consistent with the regulatory objectives pursued.

 

The book ultimately argues that discrepancies in the standard of judicial review employed in relation to the areas under study – healthcare, education and collective labour law, on the one hand, and gambling, on the other – cannot be justified considering their comparable political and social sensitivity. Rather, these discrepancies indicate that the Court has been unfairly selective in its observance of the principles of subsidiarity and proportionality in the free movement case law.  

 

Judicial Reasoning Reform

 

In light of its findings, the book advances a proposition aimed at restoring the balance of competences within the EU and thus easing the tensions created by the case law. Specifically, it proposes that the principles of subsidiarity and proportionality should be reinforced into EU-level judicial practice concerning the areas of national policy which are in principle reserved to Member State competence. In practice, this would require the Court to employ, in relation to those areas, a set of techniques of judicial interpretation – already to be found in the Court’s wider case law – that are aimed at lowering the standard of judicial review. These techniques are the margin of appreciation, the ‘fair balance’ approach and exemption from the scope of EU law.

 

The proposed reform would ensure that the exercise by the Court of EU judicial authority through the interpretation of internal market law respects the limits of EU competences.

 

EU foreign policy sanctions: extending and using EU criminal law powers to enforce them

 

Professor Steve Peers, University of Essex

Photo credit: Pierre Blaché, via Wikicommons

*This blog post draws upon research for the forthcoming 5^th edition of EU Justice and Home Affairs Law (OUP, 2023)

On Monday this week, the EU Council adopted a decision to extend EU criminal law competence to cover EU foreign policy sanctions. Today, the EU Commission proposed a Directive that, if agreed, would use that competence to harmonize the criminal law of Member States on this issue. The following blog post analyses in turn the decision and the proposed Directive, in order to assess the potential impact.

The Decision extending competence

The legal context: criminal law

The context of the Decision is the Treaty framework on the EU’s power to harmonize substantive criminal law. That power is set out firstly in Article 83 of the Treaty on the Functioning of the European Union (TFEU), in particular Article 83(1), which reads as follows:

1. The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.

These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.

On the basis of developments in crime, the Council may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.

As can be seen, the second sub-paragraph lists ten crimes (commonly referred to as ‘Eurocrimes’) which the EU has competence to harmonize. That competence involves not only the ‘definition of criminal offences’ but also ‘sanctions’, ie the length of jail terms and/or other sanctions that can be imposed as part of the criminal law. However, these are ‘minimum rules’ – meaning that Member States can add to them as part of their criminal law.

Since the Treaty of Lisbon entered into force in 2009, the EU has adopted Directives regarding most of the ten Eurocrimes, in most cases replacing older forms of EU law adopted before the Treaty of Lisbon entered into force. The exceptions are arms trafficking, corruption, and organized crime – although there are pre-Lisbon EU laws concerning the latter two crimes, and other EU legislation concerning firearms that falls short of adopting criminal sanctions for arms trafficking. In any event, as we shall see, some arms trafficking will fall within the scope of the new EU competence regarding criminal law and EU foreign policy sanctions.

Opt-outs apply to the new Decision: Denmark is entirely opted out of EU criminal law adopted after the Treaty of Lisbon, while Ireland chose to opt in. We can only speculate whether the UK would have chosen to opt in or not.

Since the Treaty of Lisbon, ordinary CJEU jurisdiction applies in this area – meaning that national courts can ask the CJEU questions about the validity and interpretation of EU Directives on substantive criminal law. (There have only been a few such references to the CJEU by national courts). The EU Commission can also bring infringement proceedings against Member States for late or inaccurate transposition of the Directives which the EU adopts.

Finally, the context of EU criminal law includes the other related competences of the EU. Article 83(2) provides for the EU to adopt criminal law harmonization Directives also in other areas of criminal law, where this ‘proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures’. This has, for instance, been used to adopt a Directive on fraud against the EU’s financial interests. (It might be argued that foreign policy sanctions already fell within the scope of Article 83(2), so the recent decision extending the list of ‘Eurocrimes’ was unnecessary, but the EU thought otherwise)

Furthermore, Article 82(1) gives competence to adopt measures on mutual recognition in criminal matters, along with other forms of cooperation between criminal law authorities, while Article 82(2) gives competence to adopt harmonization measures on national criminal procedure – listing evidence, victims’ rights, and fair trials as areas where the EU can act. Article 84 gives limited powers regarding crime prevention; Article 85 gives powers relating to Eurojust, the EU agency on cooperation between prosecutors; and Article 86 provides for a European Public Prosecutor’s Office (EPPO) to be set up.

In practice regarding those other powers, since the Treaty of Lisbon, the EU has adopted a few mutual recognition measures, a law on victims’ rights, six Directives on fair trials, and Regulations on Eurojust and the EPPO. Most of these laws update pre-Lisbon legislation (except the fair trials Directives and the EPPO Regulation); and there is still an important batch of pre-Lisbon law on mutual recognition (most significantly, the European Arrest Warrant law). Some of this legislation generates CJEU case law – mostly regarding the European Arrest Warrant, but also there are judgments on most of the fair trials directives and most of the other mutual recognition measures.

The legal context: EU foreign policy sanctions

Unlike the other Eurocrimes listed in Article 83(1), there is a body of EU law already in this field. This has been built up on the basis of two related powers to act: first the EU’s powers to adopt Decisions on foreign policy sanctions (along with other foreign policy issues) on the basis of Article 29 of the Treaty of European Union (TEU). Secondly, Article 215 TFEU, which provides for most of those foreign policy sanctions to be paralleled in the form of ordinary EU law (in practice, Regulations):

1. Where a decision, adopted in accordance with Chapter 2 of Title V of the Treaty on European Union, provides for the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries, the Council, acting by a qualified majority on a joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and the Commission, shall adopt the necessary measures. It shall inform the European Parliament thereof.

2. Where a decision adopted in accordance with Chapter 2 of Title V of the Treaty on European Union so provides, the Council may adopt restrictive measures under the procedure referred to in paragraph 1 against natural or legal persons and groups or non-State entities.

3. The acts referred to in this Article shall include necessary provisions on legal safeguards.

Although Article 215 provides for qualified majority voting of Member States in the Council, the effective rule is actually unanimity, for that is the rule which applies (with marginal exceptions) to the adoption of the EU foreign policy measures which the Article 215 legislation gives effect to.  The Commission proposed a few years ago to drop unanimity here, but Member States didn’t bite. (They would have to agree unanimously to change the voting rule).

Over the years, there have been a lot of EU foreign policy sanctions and a lot of litigation – mostly direct challenges to the validity of the sanctions measures by the persons or companies (or even the States) concerned by them in the EU General Court. That Court’s judgments can be appealed to the CJEU; and national courts have occasionally asked the CJEU about the interpretation or validity of sanctions decisions too. (Although in general the CJEU has no jurisdiction over EU foreign policy measures – an exception which the Court has been slowly nibbling away at for awhile – as an exception to the exception, the CJEU has its normal jurisdiction over foreign policy sanctions: see Article 275 TFEU).

Given that the new Eurocrime refers back to a body of EU law, it is thematically very similar to the areas covered by the EU’s separate powers to harmonize criminal law to give effect to EU policies, as set out in Article 83(2) TFEU – for instance, see the proposed new Directive on environmental crime, which refers back to specific EU legislation. 

The details of the Decision

The main text of the Decision simply adds the breach of EU foreign policy sanctions to the list of Eurocrimes. Note that this is a breach of EU sanctions: the Decision does not give the EU power to harmonize criminal law as regards the breach of purely national foreign policy sanctions. (How much power Member States have to adopt national sanctions is an interesting question, but need not concern us further here, because of this distinction).  

On the other hand, the new competence is not limited to breach of EU foreign policy sanctions relating to the Russian invasion of Ukraine. Even though that event is obviously what led the EU to extend its competence, as acknowledged in the preamble to the Decision, there is nothing in the wording of the Decision to say that it only applies to sanctions against Russia. Indeed, the Commission proposal for the Decision noted that the EU has forty sanctions regimes, applying not only to countries but also ‘targeting proliferation and use of chemical weapons, cyberattacks, human rights violations and terrorism’. (For more details, see the Council website, especially its sanctions map). The anti-terrorism sanctions have been around for awhile, attracting high profile litigation such as cases involving Mr Kadi or Hamas; the human rights sanctions are fairly new, but will sometimes cross over with other sanctions – see, for instance, the sanctions against Putin’s alleged allies, the Wagner Group, for human rights breaches (along with links to other EU sanction measures).

In terms of the type of sanctions covered, the preamble also makes clear that this is broad, applying not only to economic sanctions such as restrictions on trade or financial relations, but to bans on entry into the territory (which are also already given effect to by listing the sanctioned people in the Schengen Information System) and to arms embargoes. 

Much of the preamble to the Decision justifies this new extension of EU competence on the basis of the criteria set out in Article 83(1) TFEU, which any extension of competence has to satisfy: ‘particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis’. For instance, the preamble refers to the threats to international peace and security dealt with by sanctions as being ‘particularly serious’, as well as the cross-border scale of the offences.

The proposed Directive

Content of the proposal

The proposed Directive has similarities to other Directives in this area – see, for instance, the Directive on harmonization of criminal law as regards terrorism. But there are also some new elements compared to other Directives; and in any event, it is the EU’s first foray into adopting criminal law relating to EU foreign policy sanctions.

It should be stressed that (as the preamble to the Decision confirms) the Directive would not make breaches of EU foreign policy sanctions criminal for the first time in most Member States. Just as with issues like terrorism and drug trafficking, these were already crimes in most national laws before EU law came along. But the details of the national laws probably differed more before the EU got involved; the point of the EU’s involvement is to harmonize the national laws somewhat.  

Today’s proposal would require Member States to criminalize nine types of breach of EU sanctions, such as trading in goods or services covered by EU sanctions, providing financial services despite an EU law sanction, or even enabling the entry or transit of a person covered by an entry ban deriving from EU sanctions (in effect, an immigration law offence that might overlap with the pre-existing EU law on facilitation of illegal entry and residence in general – although the EU criminal law in that area is less detailed than today’s proposal). In every case, an intentional breach would have to be criminalized; and in most cases, ‘serious negligence’ resulting in the breach would have to be criminalized too. As with the Decision on competence, the Directive would not be limited just to sanctions against Russia, but would apply to EU foreign policy sanctions across the board.

There is a novel clause on the position of lawyers advising those accused of sanctions breaches:

Nothing in paragraph 2 [the list of crimes] shall be understood as imposing an obligation on legal professionals to report information which is obtained in strict connection with judicial, administrative or arbitral proceedings, whether before, during or after judicial proceedings, or in the course of ascertaining the legal position of a client. Legal advice in those circumstances shall be protected by professional secrecy, except where the legal professional is taking part in the violation of Union restrictive measures, the legal advice is provided for the purposes of violating Union restrictive measures, or the legal professional knows that the client is seeking legal advice for the purposes of violating Union restrictive measures.

There is also a specific guarantee for the right to silence, and exemptions for goods or services provided for daily use, failure to report, or humanitarian aid for those in need. Inchoate offences of incitement and (in most cases) attempts are also criminalized, as is aiding and abetting. As for penalties, Member States must provide for a maximum possible penalty of at least five years for most offences, and one year for the rest – subject to a threshold of €100,000 being involved (which can be satisfied by a linked series of offences). Otherwise, Member States are obliged to provide at least for the possibility of some imprisonment (for instance for sanctions with a lower value, or breach of an entry ban), and in all cases to provide for additional penalties, such as fines.

Legal persons are subject to liability, too, and must be subject to penalties such as shutting down the business or withdrawal of its licences. This is a longer list than usually provided for in EU criminal law Directives. Criminal liability must be aggravated in certain cases (such as organized crime, or breach of duty by a public official or a professional), and mitigated in others (where the offender ‘flips’ on his or her criminal associates).

Criminal jurisdiction would apply more widely than under most EU criminal law Directives, where it usually applies to acts committed on the territory (sometimes with further elaboration) or by nationals. Here it would apply also to habitual residents, and the territory is further defined as including a Member State’s airspace or any aircraft or vessel under its jurisdiction.

Unusually, there would be rules on limitation periods, ie when Member States would be out of time to bring a prosecution or enforce a sentence. In most cases the limitation period would be five years, with a possibility for derogation. Previously Member States have only agreed to regulate this issue via EU law as regards fraud against the EU budget (although the pending proposals on environmental crime and violence against women would also address it).

Finally, there would be links to other EU law (besides, obviously, the sanctions laws themselves). The proposal would link up with EU law on money laundering and confiscation, plus there is a novel link to the EU legislation on whistleblowers: that law must also apply to protect those in a company or organization who tip off the authorities about breaches of sanctions. Conversely, there is no proposed amendment of the law on the European Arrest Warrant – even though breach of EU foreign policy sanctions is not on the list of crimes where the dual criminality condition for extradition must be waived. However, prosecution or sentences for sanctions breaches will sometimes fall within areas where dual criminality has to be waived (like terrorism or organized crime); and the dual criminality condition is more likely to be met as a result of the harmonization Directive anyway (it may even be met already, simply by virtue of the foreign policy sanctions measures themselves). 

The legislative process

Opt-outs will apply to the proposed Directive: again, Denmark is entirely opted out of EU criminal law adopted after the Treaty of Lisbon, while Ireland can choose to opt in or not. (Update, March 8 2023: Ireland has opted in). Again, we can only speculate whether the UK would have chosen to opt in or out.

Other Member States have a form of protection for their interests too. Although the ‘ordinary legislative procedure’ applies to the adoption of laws in this area (see the text of Article 83(1) above), which means only a qualified majority of Member States in the Council is necessary to adopt a law (along with agreement of the European Parliament), Article 83(3) TFEU provides that if a Member State believes that a Directive ‘would affect fundamental aspects of its criminal justice system’, it can effectively pull an ‘emergency brake’ and ask EU leaders to discuss the issue. If there’s no agreement at that level, if at least nine Member States still want to participate in the proposed law, they can trigger ‘enhanced cooperation’ to go ahead – without the objecting Member State(s) – on a fast-track basis. To date, Article 83(3) has not been used, although its mere existence may have meant that any concerns Member States have raised about their criminal justice systems received particular attention during negotiations.

Comments

It’s difficult to see what impact the extension of competence, in conjunction with the proposal to harmonize the law (if adopted), would have in practice, without more detail on what changes would be made to national law as a consequence of its adoption. One issue with criminal law – just as with non-criminal forms of regulation of conduct – is of course the resources and expertise necessary to investigate and bring prosecutions. On this point, the prospect of extending competence to the European Public Prosecutor’s Office to include breaches of EU foreign policy sanctions has been raised by the German and French justice ministers. This would certainly be a big development if it happens (extensions of EPPO competence need unanimous agreement of Member States, although some Member States have opted out of the EPPO; the Commission’s proposal to extend its competence to terrorism has not been agreed so far).

Is this extension of EU competence an example of the endless EU power-grabs so feared by the EU’s critics? On this, it’s notable that the extension came on the eve of the thirteenth anniversary of the Lisbon Treaty entering into force – and yet it’s the first such extension of competence in that whole time. By contrast, Member States have not yet agreed an earlier proposal to extend the list of Eurocrimes to cover hate speech and hate crimes. Nor, as noted above, have they agreed the proposal to drop unanimous voting for some foreign policy measures – or to drop unanimity in a number of other areas which the Commission proposed years ago.  

The extension of competence is better understood as part of the EU’s response to the Russian invasion of Ukraine – which has also prompted developments in the use of EU defence powers, and the first-ever use of the long-dormant temporary protection Directive. By itself, the extension of EU competence and the use of those new powers will not end the invasion – and, as noted already, it applies to other EU sanctions too. Nor does it address the criticism that that those sanctions are too little and too late. But it may make some contribution to the effective implementation of those sanctions which have been established to oppose the invasion, and in any event it sends a political message that the EU is stepping up their enforcement.