Who Reviews the Conditions of Union Power? The Kövesi Litigation and a Blind Spot in the Judicial Review of Hybrid EU Governance

 

Joanna Demopoulou holds a PhD in International Affairs and is a former Executive in Residence at the Geneva Centre for Security Policy (GCSP). Her research examines the legal and institutional architecture of public authority and governance, focusing on how law structures, distributes, and constrains public authority across European and international institutions.

 

Photo: Laura Kövesi, by AGERPRES, cropped by Ionutzmovie, via Wikimedia Commons

 

EU law can examine almost any exercise of public power. Where it struggles is with the decision, taken a step earlier, about whether that power may exist at all. The Kövesi litigation is where the gap becomes visible.

 

On 24 June 2026 the Administrative Plenum of the Greek Court of Cassation dismissed, as inadmissible, an application brought by the European Chief Prosecutor, Laura Kövesi. She had challenged a Greek decision renewing three European Delegated Prosecutors (EDPs) for two years, where the College of the European Public Prosecutor's Office had wanted five. The vote was seventy-two to ten. Reported as news, the case looks like a routine standing problem: a supranational official has no locus, under domestic law, to contest a Member State's handling of its own judicial officers, and national procedure ran its course. That reading is not wrong. It is just incomplete.

 

What the dismissal actually protects is worth stating plainly. European prosecutorial independence was shielded here not according to what it does, but according to who signed the act that curtailed it. Nobody designed things to work this way, which is rather the trouble.

 

The case in brief

 

The College favoured a five-year renewal for three prosecutors in the Greek national section. The Supreme Judicial Council, the organ of national judicial self-government, granted two. Kövesi sought annulment. The Plenum found she lacked standing. Under Greek law on the service status of judicial officers, recourse lies only with the affected officers themselves, and only where the underlying Council decision carried a dissent of at least two members. This renewal had been unanimous.

 

The consequence is what matters. The problem was not that the wrong applicant had turned up. On these facts, no applicant could have brought a challenge at all. A minority of ten judges would have referred the underlying question, who fixes the duration of an EDP's mandate, to Luxembourg; the majority made no reference. And the forum matters: this was the Administrative Plenum in closed session, the Court acting in its self-governing rather than its adjudicative capacity. A national body, applying national rules, set a term that would bound the independence of a Union prosecutor.

 

EU law reviews the exercise of power well

 

The EPPO Regulation shows how far Union law has come in policing how European Union power is used. Operational acts, meaning the procedural steps of an investigation that can affect third parties, are reviewable under Article 42(1). Administrative acts of the Office fall to the Court of Justice under Article 42(8). And that Court has read these provisions generously. In EPPO v I.R.O. and F.J.L.R. (C-292/23), decided by the Grand Chamber on 8 April 2025 on a reference from a Spanish court, it insisted on effective review even of a witness summons issued by a European Delegated Prosecutor, looking past the formal label of the act to its effect on a legal position. The Regulation itself reveals an asymmetry: Article 42(8) expressly provides review for decisions dismissing EDPs under Article 17(3), but says nothing about national decisions shortening the office on which the Union mandate depends. Where European Union power is exercised, in short, a court can generally be found to look at it.

 

The Greek renewal decision is not that kind of act. It exercises no Union power and administers no Union office. What it does is change the duration of the national judicial status a person must hold in order to serve as an EDP at all (Recitals 32–33). Article 17, which entrusts appointment and dismissal to the College, treats that status as a standing precondition of the Union mandate, not as the thing the mandate acts upon. The act does not use the prosecutor's independence and it does not formally end it; it determines whether that independence can go on being held at all. What is being decided, in other words, is a precondition of the Union mandate rather than anything the mandate does, and preconditions of that sort are where EU judicial review is thinnest.

 

Why it falls between the regimes

 

The Regulation's review architecture sorts acts along two axes: institutional origin (an act of the EPPO, or of a Member State) and character (operational or administrative). A decision of the kind at issue here fits none of the resulting boxes. Because it is national in origin, the national track applies and Article 42 does not. Because it is neither operational nor administrative in the Regulation's sense, no Union regime claims it either. It is left to ordinary national service-status litigation.

And in Greece that litigation led nowhere. The unanimity bar, anchored in Article 90(3) of the Greek Constitution (whose compatibility with the right to effective judicial protection is itself already contested), meant that no review was available to anyone. The independence of a Union prosecutor was capped by a national hand, and no court, Greek or European, was in a position to examine the cap.

 

The obvious objection

 

The natural response is that this is simply a national act, and that dressing it up as anything else misreads the bargain on which the EPPO was built. The Office was designed to stay embedded in national structures. Article 42 was written for the Office's operational output, not for Member States' decisions about their own judges.

 

Take that objection at its strongest and it still runs into the facts. To succeed, it has to treat the decision's effect on a Union status as carrying no independent legal weight, the two-year cap as, in Union terms, simply invisible. But the College's five-year act and the Council's two-year act, pulling in opposite directions over the same office, put exactly that in doubt. If national tenure can quietly cap the Union mandate, a formally national act is shaping a condition of Union authority with no Union-level review; if it cannot, the act was never purely national in effect. Either way the binary the architecture relies on does not hold, and incorporation of the national status into the Union scheme, even if one grants it, says nothing about who may review a decision that shortens the incorporated condition.

 

The argument does not turn on how Kövesi ends

 

It is worth being precise about what this is not. There is a substantial literature on judicial review in composite or integrated procedures, where national and Union authorities each contribute to a single act and review fractures because each court sees only its own segment. The Greek renewal is a different animal: not a national input into a composite Union act, but a self-standing national decision that governs a precondition the Union scheme takes as given. The composite-procedures problem is who reviews which part of a joint act. The problem here is that the review architecture offers no settled framework for a decision about whether the Union mandate can subsist at all.

 

None of this denies that EU law has built review doctrines in adjacent terrain. Article 19(1) TEU, in the line running from the Portuguese Judges case, obliges Member States to uphold the independence of national courts that may rule on Union law. But that doctrine asks whether independence is protected; it does not supply a route for reviewing a national decision that fixes the tenure on which a Union mandate depends. The guarantee runs to independence as a value, not to the reviewability of the act that conditions the office.

 

Suppose the Court of Justice were eventually to hold, here or in a later case, that a renewal of this kind is purely national and beyond Union reach. That would not defeat the point; it would illustrate it. The claim is not that such decisions must become Union acts and be reviewed in Luxembourg. It is narrower and more awkward: EU law currently reads such decisions through the origin of the act, so that their bearing on Union power does no independent work. A ruling that an act of this kind is 'purely national' would be the clearest demonstration of that reflex. The thesis is about the criterion of review, not the disposition of this dispute, which is why it survives whichever way the dispute is resolved.

 

Beyond the EPPO

 

European Union constitutional law has grown confident at reviewing how public power is exercised. Whether it has built anything equally coherent for reviewing the legal conditions on which that power rests is far less clear, and those conditions multiply as Union governance turns hybrid, its authorities European but their underpinnings national.

 

So Kövesi is not really a story about three prosecutors in Athens. It is the point at which the standard question of judicial review, who exercised this power, starts to miss something. EU law has developed an answer to the first question. It has not yet developed one to the second, who set the conditions under which the power could be exercised at all.

 

*A note on sources. At the time of writing the full reasoning of the Administrative Plenum was not publicly available. This post relies on the EPPO Regulation (Council Regulation (EU) 2017/1939) and CJEU case law as primary materials, and on contemporaneous reporting for the Greek proceedings. The characterisation of the majority and minority positions should be checked against the official text once it is released.

 

Advancing Gender Equality: The EU`s Landmark Directive 2024/1385 on Violence Against Women

 

 

Dr. Ceren Kasım, Postdoctoral Research and Teaching Fellow, University of Hildesheim, Germany

Photo credit: MesserWoland, via Wikimedia Commons

 

INTRODUCTION

 

The first-ever binding European Union (EU) legal instrument to combat violence against women and domestic violence was approved on the 14th of May 2024 by the EU and has already been published in the Official Journal of the European Union. This Directive, known as Directive 2024/1385 on combating violence against women and domestic violence (Directive), marks a historic moment for equality and equal opportunities in the European Union and is a significant symbol of the EU`s dedication to achieving not only de jure but also de facto equality.

 

Gender-based violence is prevalent in the European Union, with one in three women in the EU reporting experiences of physical and/or sexual violence. Each day, between 6 and 7 women in Europe are killed by their partner or ex-partner, resulting in an estimated total of 2300 women becoming victims of femicides every year. The structural nature of such violence is inherently connected to gender-based discrimination, serving as a central social mechanism that perpetuates women`s subordination in society. The Directive represents a step closer to gender equality in the European Union, not only through the criminalisation of many offenses but also by promising preventive, supportive, and prosecutorial measures linked with training and coordinated Europe-wide policies.

 

BACKGROUND

 

The Directive 2024/1385 is a groundbreaking legal document that aims to prevent and combat violence against women (VAW) and domestic violence. It highlights the European Union’s objectives to achieve equality between women and men, as outlined in the Treaties, including Art. 2, Art. (3)(2) TEU, Art. 8, 10, 19 TFEU, as well as Art. 21 and 23 of the Charter of Fundamental Rights, which represent the fundamental values of the EU. The Directive also aligns with the EU Gender Equality Strategy 2020-2025, which includes the objective of eliminating gender-based violence.

 

European women`s organisations have advocated for a European legal instrument to empower women in Europe, aiming to create a safer environment for women and girls. In a parallel development, the Directive was launched on March 8, 2022, a significant symbolic date for women's rights – International Women`s Day. Subsequently, on June 9, 2023, the Council agreed on its position regarding the proposed Directive, leading to a deal being reached among EU legislators in February 2024. The EU Parliament then adopted the directive on April 24, 2024, with 522 in favor, 27 against, and 72 abstentions, which was later adopted by the council on May 7, 2024. Finally, on May 14, 2024, the act was signed.

 

Moreover, a significant advancement towards gender equality in the European Union was the accession of the EU to the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) (IC) on October 1, 2023 – the sole binding European human rights document addressing gender-based violence. However, controversy surrounding the Istanbul Convention arose within the broader European context, with instances such as the Bulgarian Constitutional Court declaring it unconstitutional in 2018. Additionally, Polish government argued that the convention disregards religious beliefs and promotes what they term ‘gender ideology’. In 2019, the Slovakian parliament chose not to ratify the Convention, despite earlier signing it. Notably, an Opinion by the European Court of Justice (Grand Chamber) on October 6, 2021 (Opinion 1/19), paved the way for swift ratification of the Convention, allowing the Council to adopt it through a qualified majority vote. EU acceded to the Convention, handling matters falling under its exclusive competences as defined by agreed common rules related to judicial cooperation, asylum, non-refoulement, institutions, and public administration of the Union. So, it was crucial for the EU to have its own legal instrument, especially considering that some EU Member States have not ratified the Istanbul Convention.

 

The Directive stands as the sole European Union legal source addressing VAW and domestic violence directly. Member States now have three years to implement the provisions (Art. 49).

 

COMMON RESPONSIBILITY AND A COMPREHENSIVE FRAMEWORK

 

The Directive stands out in many aspects. Foremost, it acknowledges the shared responsibility of Member States in addressing and advocating for a comprehensive framework to effectively prevent and combat VAW and domestic violence.

 

This holistic approach within the Directive introduces detailed regulations and sets down rules to prevent and address VAW and domestic violence, with the aim of ensuring effectiveness and enforceability. The Directive's obligations cover four key pillars: prevention and early intervention, protection and access to justice, victim support, coordination and cooperation. In alignment with the four aims of the Istanbul Convention – prevention, protection, prosecution, and coordinated policies – the EU seeks to bolster the protection of all victims of VAW and domestic violence by establishing measures focusing on prevention, minimum guidelines for reporting, early intervention, victim protection, support, access to justice, perpetrator prosecution, training, enhanced data collection, coordinated mechanisms, and cooperation requirements.

 

The Directive establishes mechanisms for prevention and early intervention, as well as measures to protect and support victims, outlining the minimum rights of victims of all forms of VAW or domestic violence before, during, and for a period of time after criminal proceedings. It advocates for a comprehensive preventive approach and ensures the existence of early intervention mechanisms. It is convenient to emphasise the importance of these mechanisms going beyond basic preventive measures to include compulsory comprehensive sexuality education, consent education, and challenging negative gender norms.

 

The Directive mandates the provision of protection and support for victims, guaranteeing victims access to comprehensive medical care and sexual and reproductive health services. This marks the first instance where EU law imposes explicit obligations on Member States to ensure access to essential medical care for victims of sexual violence. Additionally, it ensures that victims have access to justice. Member States are required to provide training for professionals who are likely to interact with victims, including law enforcement, prosecutors, and judiciary. Moreover, the prosecution of perpetrators must be consistently ensured across all Member States. The training provided should be based on human rights, centered around the victim, and sensitive to gender, disability, and children (Art. 36).

 

In many respects, the Directive is determined, demanding that Member States adopt comprehensive and coordinated policies (Art. 38) and introduce national action plans (Art. 39) that should be implemented with union-level cooperation (Art. 43). These efforts should be bolstered by collaboration with non-governmental organisations (Chapter 6). Member States are urged to consider the expertise of women's organisations and women's specialist services, as crucial players in addressing all forms of VAW and offering assistance to survivors with a gender-sensitive and intersectional outlook.

 

CRIMINALISING FORMS OF VIOLENCE

 

In addition, the Directive establishes minimum rules specifying criminal offences and penalties related to the sexual exploitation of women and children, as well as cybercrime. In doing so, it criminalises and categorises forms of gender-based violence that were previously only acknowledged by a limited number of Member States. By taking this step, the Directive aims to standardise criminal legislation across the European Union concerning certain forms of VAW.

 

One key aspect is the requirement for EU countries to criminalise female genital mutilation (Art. 3) and forced marriage (Art. 4). This demonstrates the Directive`s firm stance that these issues are not merely products of cultural distinctions but are rather gender-related crimes.

 

Moreover, the Directive places a significant emphasis on addressing cyber-related violence. It considers the non-consensual sharing of intimate or manipulated material as a criminal offence (Art. 5), providing a safety measure to protect women, which also encompasses instances like deepfakes. Additionally, cyber stalking (Art. 6), cyber harassment (Art. 7), and cyber-incitement (Art. 8) are recognised as punishable criminal offences. The Directive also addresses issues such as cyber stalking that have previously not been adequately covered in EU legal regulations, thereby filling a legal gap and for the first time criminalising various forms of cyber violence that predominantly target and impact women due to their gender.

 

Furthermore, the Directive outlines a list of aggravating circumstances (Art. 11), which include offences driven by motives related to the victim`s sexual orientation, gender, colour, religion, social origin, or political beliefs, as well as actions intended to uphold or restore “honour”. It also covers crimes against public figures, journalists, or human rights defenders.

 

INTERSECTIONAL DISCRIMINATION

 

One of the most visionary aspects of the Directive is its consistent reference and emphasis on intersectional discrimination. The term ‘intersectional discrimination’, coined by Kimberle Crenshaw in the early 1990s, highlights the nature of discriminatory practices by showing how different discriminatory grounds interact with each other in a multifaceted way. The intersectional aspect of discrimination makes women more vulnerable and at a heightened risk of experiencing gender-based violence.

 

The Directive refers to intersectional discrimination in connection with Art. 21 of the Charter of Fundamental Rights and the referenced grounds of discrimination (Articles 16, 21, 33). With advancing technologies, Art. 21 of the Charter becomes more significant as it includes genetic features as a ground for discrimination. By acknowledging intersectional discrimination, the Directive extends its protection to the most vulnerable groups who are at risk of all forms of gender-based violence and domestic violence – including women from racial minorities, women with disabilities, individuals with different sexual orientations, gender identities, and expressions, such as transgender and non-binary individuals, sex workers, individuals with lower socio-economic status, those who are homeless, with unstable immigration status – to access improved support services. These groups are the least protected and supported in society.

 

THE ABSENCE OF ACKNOWLEDGEMENT OF GBV AS A HUMAN RIGHTS VIOLATION

 

However, there is a missing human rights perspective in the Directive. Neither in the Preamble nor anywhere else does the Directive acknowledge that gender-based violence is a human rights violation. This recognition is a core element of the Istanbul Convention. However, the Directive refers to VAW and domestic violence as a violation of fundamental rights and, thereby losing its connection to the most significant human rights document on VAW and domestic violence in Europe. (Compare Art. 3(a) IC to Art. 2(a) Directive 2024/1385) The Directive missed an opportunity to align closely with the Istanbul Convention's human rights approach, which would have been a groundbreaking step in addressing gender-based violence and domestic violence at the EU level.

 

A CLEAR GENDER PERSPECTIVE MISSING

 

In the Directive, a clear reference to gender and a distinction between ‘gender’ and ‘sex’ are also lacking. The Directive has an ambiguous relationship with the concept of gender. It uses the terms ‘sex’ and ‘gender’ interchangeably in most cases, leading to significant uncertainty and undermining all the progress that has been made thus far. It lacks a genuine gender perspective. Which would have allowed for an understanding of the root causes, socially structured and historically ingrained nature of violence in relation to structural inequalities, moving away from a binary understanding of sex and stereotyping.

 

Unlike the Istanbul Convention, the Directive does not provide a definition of gender. CEDAW has also amended its General Recommendation No. 35 by explicitly choosing the phrase ‘gender-based violence against women’, a new and more inclusive approach to addressing the issue. Gender is socially constructed, whereas sex is genetically determined. The concept of gender enables us to comprehend violence within its societal context rather than viewing it as an individual problem. Considering that the European Court of Justice also does not clearly differentiate between ‘gender’ and ‘sex’ and regrettably uses the two terms interchangeably, it would have been appropriate for the European legislative body to rectify this and bring clarity.^[1] The Directive could have simply followed the footsteps of the Istanbul Convention and provided clear definitions of the term gender and distungish betwenn gender and sex.

 

Furthermore, the Directive uses the term ‘violence against women’ instead of gender-based violence. However, it defines ‘violence against women’ as “gender-based violence directed against a woman or a girl because she is a woman or a girl or that affect women or girls disproportionately”. (Art. 2(a)) ‘Victim’ refers to “any person, regardless of their gender, who has suffered harm directly caused by violence against women or domestic violence”. (Art. 2(c) ) Throughout the text, the directive does not clearly differentiate between ‘sex’ and ‘gender’. Although some use ‘violence against women’ and ‘gender-based violence against women’ interchangeably, there is a distinction in understanding. Gender-based violence, including violence against women, encompasses all forms of violence that disproportionately affect women and marginalised communities. Using ‘violence against women’ as an umbrella term excludes also individuals who do not fit into the category of ‘women’, such as sexual minorities and non-binary people.

 

NOT CRIMINALISED FORMS OF VIOLENCE

 

In addition, other forms of violence, such as intersex genital mutilation and forced sterilisation, were ultimately not criminalised in the Directive. Intersex genital mutilation affects intersex individuals, who are one of the most discriminated groups among the LGBTI population. On the other hand, forced sterilisation is a surgical procedure that removes a person`s ability to have children without consent or under undue pressure. Women with disabilities are disproportionately subjected to forced and involuntary sterilisation. United Nations human rights instruments, mechanisms, and agencies have acknowledged that the forced sterilisation of persons with disabilities constitutes discrimination, a form of violence, torture, and other cruel, inhuman, or degrading treatment. The UN Special Rapporteur on the rights of persons with disabilities stated in 2017 that protecting the rights of persons with disabilities to make decisions about their own bodies and sexuality is crucial in the global effort to end violence, exploitation, and abuse against women. Forced sterilisation is still either permissible by law or not expressly banned in 12 out of the 27 EU Member States –Bulgaria, Cyprus, Croatia, Denmark, Estonia, Hungary, Finland, Latvia, Lithuania, Portugal, Slovakia and the Czech Republic– as reported by the European Disability Forum.

 

ABSENCE OF A DEFINITION OF RAPE

 

One of the continuous criticisms and demands preceding the adoption of the Directive was a common European consent-based definition of the crime of ‘rape’. Article 5 of the initial Proposal, focusing on the definition of ‘rape’ – a definition similar to the Spanish law from 2022, known as the “yes means yes” approach – was deliberated for nearly two years and was ultimately removed from the draft. This sets the Directive apart from the Istanbul Convention, which already includes a definition of rape based on the absence of consent (Art. 36 IC). Member States held varying opinions on this matter, with Italy and Greece supporting the inclusion of such a definition, while Germany and France opposed it, arguing that the EU lacked the authority to address this issue. Despite persistent demands from women's and human rights organisations, as well as many academics, the approved Directive does not provide a definition.

 

UNDOCUMENTED WOMEN AND WOMEN WITH AN INSECURE RESIDENCE STATUS

 

The Directive lacks a dedicated chapter addressing migrant women. The absence of an independent residence status, a secure status, or any status poses challenges for women, increasing their vulnerability to violence or exploitation in a variety of contexts by employers, intimate partners, or other individuals. As a result, they are less likely to report violence and abuse., limiting their access to justice and their ability to escape abusive situations, rendering them vulnerable to further abuse. Recently, the European Court of Justice in two landmark cases WS v Bulgaria (C‑621/21)^[2] and K, L v Staatssecretaris van Justitie en Veiligheid (C-646/21) reaffrimed the status of women as a whole, including minors, and women facing domestic violence in their country of origin in particular, and women who identify themselves with the fundamental value of equality between women and men qualify as a protected ‘social group’ in reference to Istanbul Convention. While the initial proposal included provisions to ensure that no personal data about victims of abuse, including residence status, would be shared by police with immigration authorities, the final text omits these safeguards (Art. 16(5) Propsal) As stated by many human rights organisations, this approach would run counter to the EU's rules on victims' rights (Victims' Rights Directive) and data protection (General Data Protection Regulation), which mandate rights and safeguards for all individuals without discrimination. This discrepancy with the Istanbul Convention contradicts the Convention`s requirement that all women be treated equally, irrespective of their residence status.

 

THE WORLD OF WORK AND THE NEW DIRECTIVE

 

In its preamble, the Directive highlights that VAW and domestic violence pose a threat to the fundamental values and rights of the European Union, particularly equality between women and men and non-discrimination. These forms of violence undermine women and girls' rights to equality across all aspects of life, including the world of work. The European Gender Equality Strategy 2020-2025 as well outlines key objectives, such as ending gender-based violence, challenging gender stereotypes, closing gender gaps in the labour market, achieving equal participation in various sectors of the economy, addressing gender pay and pension disparities, bridging the gender care gap, and attaining gender balance in decision-making and politics.

 

However, the Directive falls short in thoroughly regulating gender-based violence in the world of work. The initial Proposal in Article 4 defines ‘sexual harassment at work’ as any form of unwanted verbal, non-verbal, or physical conduct of a sexual nature that violates the victim`s dignity, particularly when creating a hostile or offensive environment. Despite efforts to include work-related violence, such provisions were rejected and are absent from the final text.

 

The Preamble of the Directive refers to sexual harassment at work in connection to EU non-discrimination Directives (No. 65 Preamble) and also in relation to support and protection mechanisms (No. 77 Preamble). Only Article 28 mandates that Member States ensure counselling services are accessible for victims and employers in cases of sexual harassment at work that constitute a criminal offence under national law. Article 36 states that individuals with supervisory in the workplace should receive training on recognising, preventing, and addressing sexual harassment at work. Additionally, Article 19 briefly mentions that restraining orders should prevent the perpetrator from entering the victim`s workplace but does not delve into specific scenarios. By 14 June 2032, the Commission is required to assess the need for further Union-level measures to effectively address sexual harassment and violence in the workplace (Article 45).

 

Given that individuals spend a significant part of their lives in the workplace and the relationship of work to socio-economic rights, an inclusive and comprehensive approach to addressing violence at work will have an emancipatory and empowering impact on women`s rights in the European Union. This approach should involve third-party violence and harassment at work, encompassing gender-based violence as well as domestic violence, whether in employment, occupation, or self-employment. However, the Directive falls short in this regard.

 

CONCLUSION

 

In conclusion, the Directive represents a significant advancement in promoting gender equality within the European Union. It recognises the shared responsibility of Member States in addressing violence against women and domestic violence, advocating for a comprehensive framework to effectively prevent and combat such issues. By criminalising offences that were previously overlooked in EU Member States and establishing minimum standards that Member States can exceed, the Directive serves as a robust legal instrument. It takes a holistic approach, providing detailed regulations and guidelines spanning from prevention and early intervention to protection, access to justice, victim support, and coordination and cooperation.

 

While the Directive is a positive step forward, it falls short of the initial Proposal's ambition, lacking a clear gender perspective and specific regulations on certain forms of violence, particularly in the context of the world of work. Nevertheless, the Directive is poised to bring about significant changes in the legal norms of Member States and pave the way for a cultural shift in understanding and addressing gender inequality that persists in EU countries. This milestone should be celebrated, while also acknowledging that there is still much work to be done to enhance legal safeguards in preventing and eradicating gender-based violence and domestic violence.

---

[1] Endres de Oliveira, Pauline / Kasım, Ceren, „Die Relevanz der Istanbul-Konvention für den flüchtlingsrechtlichen Schutz von Frauen in der EU. Das EuGH-Urteil in der Rechtssache WS gegen Bulgarien“, NVwZ 7/2024, 1.4.2024, p. 486-490.

[2] Endres de Oliveira, Pauline / Kasım, Ceren, „Die Relevanz der Istanbul-Konvention für den flüchtlingsrechtlichen Schutz von Frauen in der EU. Das EuGH-Urteil in der Rechtssache WS gegen Bulgarien“, NVwZ 7/2024, 1.4.2024, p. 486-490.

Foreign policy sanctions and criminal law harmonisation

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: Pierre Blaché, via Wikicommons

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

Late last year, the EU Member States and the European Parliament agreed upon a Directive to harmonise criminal law as regards EU foreign policy sanctions.  (Update: the Directive was officially adopted in April 2024, and published in the EU Official Journal afterwards) This followed barely a year after the EU Council adopted a decision to extend EU criminal law competence to cover those sanctions. This blog post updates a previous post that discussed both the 2022 decision on competence and the initial Commission proposal for a Directive that has now been agreed in principle.

The Decision extending competence

As noted in the previous post – and discussed in more detail there – the 2022 Decision extending EU competence was the first use of the EU’s power to extend the list of crimes which it had competence to harmonise, as set out in Article 83 of the Treaty on the Functioning of the European Union (TFEU). The previous list of crimes was: ‘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’.

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, a proposal from 2023 to update the law regarding corruption, 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 newly agreed EU Directive on criminal law and EU foreign policy sanctions.

The legal context: EU foreign policy sanctions

As discussed in more detail in the previous blog post, there is a body of EU law already in this field, based on 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), alongside 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).

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 in the foreign policy provisions of the TEU (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 eroding for awhile – as an exception to the exception, the CJEU has its normal jurisdiction over foreign policy sanctions: see Article 275 TFEU).

The details of the Decision

A key point about the Decision extending EU competence is that it applies only to the breach of EU foreign policy sanctions. So the Decision does not give the EU power to harmonize criminal law as regards the breach of purely national foreign policy sanctions. The recently agreed Directive respects this distinction, applying only to EU sanctions.

However, the competence – and the recently agreed Directive – are not limited to breach of EU foreign policy sanctions relating to the Russian invasion of Ukraine, even though that invasion was the reason why the Decision and the Directive were adopted and agreed. In fact, 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 erstwhile 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 to the Decision, as well as the recently agreed Directive, 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. 

The agreed Directive

Basic rules

The recently agreed 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 will 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. 

Member States will have to apply the Directive one year after its formal adoption (update: the deadline in the published Directive is 20 May 2025). This is longer than the six months proposed by the Commission, but less than the two year deadline usually applicable to Member States applying Directives.  

As noted already, just like the Decision on competence, the Directive will not be limited just to sanctions against Russia, but will apply to EU foreign policy sanctions across the board.

Denmark has an opt out of EU criminal law adopted after the Treaty of Lisbon, while Ireland opted in.

Definition of crimes

The agreed Directive will require Member States to criminalize nine types of breach of EU sanctions, which can be summarised as: making funds available to sanctioned persons; failing to freeze funds of sanctioned persons; 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 – itself subject to a recent proposed replacement); entering into transactions with sanctioned entities; trading in goods or services covered by EU sanctions; providing financial services despite an EU law sanction; providing other services banned by sanctions law; circumvention of sanctions; or abusing exceptions to the sanctions laws.

Member States will have an option (not in the Commission proposal) to exempt from criminalisation breaches involving sums less than €10k, although where multiple such minor breaches are linked, Member States must accumulate them so that they might reach the €10k threshold that way. (This threshold does not apply to entry bans, presumably because a financial threshold is irrelevant)

In every case, an intentional breach will have to be criminalized; and in one case (trade in arms or dual use goods subject to sanctions), ‘serious negligence’ resulting in the breach will have to be criminalized too. The Commission had proposed that ‘serious negligence’ should be criminalised in most cases.   

There is a novel clause on the position of lawyers advising those accused of sanctions breaches, which differs somewhat from the Commission’s proposal:

Nothing in paragraph 1 shall be understood as imposing an obligation on legal professionals to report information that they receive from, or obtain on, one of their clients, in the course of ascertaining the legal position of their client, or performing the task of defending or representing that client in, or concerning, judicial proceedings, including providing advice on instituting or avoiding such proceedings

There is also an exemption for goods or services provided for persons in need or humanitarian aid, although usually EU sanctions law has its own exceptions for those cases anyway.

Inchoate offences of incitement and (in most cases) attempts are also criminalized, as is aiding and abetting.

Penalties

Member States will have to provide for a maximum possible penalty of at least five years for most of the main offences (not the inchoate offences), and one year for most of the rest of the main offences – subject to a threshold of €100,000 being involved (which can again be satisfied by a linked series of offences). No financial threshold will apply in two cases: breaches of entry bans and trade in sanctioned arms or dual use goods. Furthermore, a three year maximum possible penalty applies to breaches of entry bans.

More generally, as regards the commission of any of the offences defined by the Directive, Member States will be obliged to provide for additional penalties, such as fines, withdrawal of permits, and even (a novelty for EU criminal law) a temporary ban on running for office.

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. The Directive will go further than usual in specifying the amount of possible fines, including basing them on annual turnover (a method previously applied in non-criminal areas of EU law, such as competition law and the GDPR).

Criminal liability must be aggravated in certain cases (such as organized crime, breach of duty by a public official or a professional, obstruction of justice, or prior convictions in this field), and mitigated in others (where the offender ‘flips’ on his or her criminal associates).

Other provisions

Criminal jurisdiction would apply, as usual under EU criminal law Directives, to acts committed on the territory, on a ship or aircraft with a national flag, or by nationals. Member States will have an option to apply liability to habitual residents.

Unusually, there will 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 to at least three years where the period can be interrupted by specified acts. Previously Member States have only agreed to regulate this issue via EU law as regards fraud against the EU budget (although the agreed Directive on environmental crime contains limitation rules, and the proposal on violence against women would also address this point).

Finally, there would be links to other EU law (besides, obviously, the sanctions laws themselves). The proposal would link up with EU criminal law on money laundering and confiscation (the latter now also being amended), 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). 

Comments

It is hard to assess the likely impact of the Directive, for several reasons.

First of all, it is difficult to see what impact the Directive will have in practice without more detail on what changes would be made to national law as a consequence of its adoption. As noted already, while the Directive will bring about some harmonisation, Member States already have some criminal laws on the books in this field.

Secondly, a key issue with criminal law – just as with non-criminal forms of regulation of conduct – is that its effectiveness depends upon 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 (EPPO) to include breaches of EU foreign policy sanctions was raised by the German and French justice ministers. This would be important but has not been raised again since the Directive was proposed. (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).

An extension of EU competence might be seen as an EU power-grab, but it is notable that it is an exception: over fourteen years after the Lisbon Treaty came into force, it is the only such extension of competence to date. By contrast, as noted above, Member States have not yet agreed an earlier proposal to extend the list of Eurocrimes to cover hate speech and hate crimes, or agreed the proposal to drop unanimous voting for some foreign policy measures; nor have they agreed to drop unanimity in a number of other areas which the Commission proposed years ago.  

It is striking to see some novel points (for EU criminal law) in this Directive: the specific rule on lawyers; the penalty of a ban on running for office (obviously relevant because politicians might be tempted to, and be in a position to, breach the sanctions); the more detailed regulation of financial penalties a la other areas of (non-criminal) EU law; the obstruction of justice point; and the link with the whistleblowers law. It is only the second time that the EU has agreed to regulate limitation periods (although the revised environmental crime directive, also including similar provisions, was agreed essentially simultaneously).

It is also significant to see the singling out of arms trade in breach of sanctions for stricter treatment in several respects, given the EU’s reluctance to regulate this issue as a Eurocrime to date. In the context of foreign policy sanctions, it makes sense to treat the arms trade more seriously, given its more direct contribution to the death and injury which the EU sanctions aim to end.

The extension of competence is also best understood as part of the EU’s response to the Russian invasion of Ukraine – which has also prompted developments as regards the start (in principle) of accession negotiations, 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 criminal law powers will not end the invasion – and, as noted already, the agreed Directive 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.

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.