Wednesday 2 August 2023

The risk of circumvention of EU sanctions through the immediate family of leading businesspersons and the CJEU’s case law



Antje Kunst*

*Antje Kunst is an international lawyer and barrister of Pavocat Chambers, admitted to the bar of England and Wales and the Bar of Berlin advising and representing individuals in a wide range of matters related to the CFSP ranging from EU employment cases to EU and international sanctions against individuals.

***Comments of academic researcher of the University of Luxembourg, Ms. Francesca Finelli were gratefully received. All views contained in this article, however, remain those of the author alone.

Photo credit: W Bulach, via Wikimedia Commons


The inclusion of family members in the categories of persons covered by EU targeted sanctions against Russia has been justified, in the Council’s view, for maximising the effectiveness of those sanctions. The inclusion of family members of leading businesspersons aims to prevent the circumvention of EU targeted sanctions (in the forms of asset freeze) by the transfer of assets between targeted leading businesspersons and their immediate family.

Updating the EU sanctions regime against Russian businesspersons


The EU's targeted sanctions against Russia's economic elites introduced on 5 June 2023 a short but significant amendment to its current sanctions regime. It extended the scope of the sanctions regime through Council Decision (CFSP) 2023/1094 (‘Council decision of 5 June 2023’) to permit the designation of immediate family members of leading Russian businesspersons operating in Russia. There are in other words now EU legal acts in place which allow for the adoption of EU sanctions against the sons and daughters, spouses and parents of Russian oligarchs based on the autonomous designation criterion of immediate family members of leading Russian businesspersons operating in Russia. (In 2015 the Council introduced the ‘leading businessperson operating in Syria’ as an autonomous general listing criterion. See Council Decision (CFSP) 2022/329 and Council Regulation (EU) 2022/330 of 25 February 2022 on the criterion of ‘leading businesspersons’.) Family members of Russian leading businesspersons have been put on the lists since early 2022 but under different grounds.

The Council’s reason for the recent amendment, undoubtedly owing to the initial rulings on Russian sanctions from the General Court in recent months (Case T-743/22 R, Nikita Dmitrievich Mazepin v Council, Order of 1 March 2023 and Case T-212/22, Violetta Prigozhina v Council, ECLI:EU:T:2023:104), is that ‘leading Russian businesspersons have engaged in a systematic practice of distributing their funds and assets amongst their immediate family members and other persons, often in order to hide their assets, to circumvent the restrictive measures and to maintain control over the resources available to them’ (Recital 5 of Council Decision 2023/1094  of 5 June 2023).

The amendment was prompted, in particular by the successful annulment of the listing in Case T-212/22, Prigozhina, which was initiated by the mother of the head of the Wagner Group. In that case, the General Court emphasized that in a legal framework such as the Syrian sanctions regime (after 2015: see Council Decision (CFSP) 2015/1836 of 12 October 2015 and Council Regulation (EU) 2015/1828 of 12 October 2015), the family link with ‘certain families’ may be sufficient to include the name of the persons on the lists at issue. In Prigozhina however, so the General Court, the EU legal acts setting out the framework for EU sanctions as a result of the invasion of Ukraine by Russia, did not refer to the members of ‘certain families’. That is why the Council had not established the risk of circumvention (para. 105 of the judgment). Another main reason was that the Council could not prove a sufficient ‘association’ with the primary target beyond mere family ties.

The curious nature of words

With this most recent amendment of the framework in June 2023, the chosen wording is of particular note. It refers to the possibility of the inclusion of immediate family members of leading businesspersons operating in Russia, even if the question is what exactly immediate family members are. Also, the Council does not refer to members of ‘certain families’ as it previously did as regard sanctions taken against Syria. Rather, the Council’s wording vis-à-vis Russia it appears to imply a presumption of circumvention through immediate family members of leading businesspersons operating in Russia.

In the Syrian sanctions framework since 2015, the EU legal acts have explicitly provided for the freezing of funds of ‘leading businesspersons operating in Syria’ and ‘members of the Assad families or Makhlouf’, as well as persons ‘associated with them’ (Council Decision (CFSP) 2015/1836 and Regulation (EU) 2015/1828). In this context, presumptions are used (by the Council) and accepted by the CJEU (see for example C‑458/17 P, Rami Makhlouf v Council, ECLI:EU:C:2018:441, para. 91, Case T‑186/19, Zubedi v Council, ECLI:EU:T:2020:317 para. 72; Case T‑256/19, Bashar Assi v Council, ECLI:EU:T:2021:818 para. 166) that individuals falling under these categories benefit from the sanctioned regime in order inter alia ‘to avoid the risk of circumvention of restrictive measures through family members’ (Recital 7 of Council Decision (CFSP) 2015/1836). 

Testing the presumption of circumvention

The question, therefore, is whether the Court of Justice – on appeal from a raft of judgments that the General Court will continue to deliver in the immediate future, in the context of the Russian sanction regime – would accept a (new) rebuttable presumption of circumvention (see Case T-5/17 Sharif v Council, EU:T:2019:216, para. 86), i.e., that the Council can legitimately presume leading businesspersons operating in Russia will transfer assets within their immediate family to circumvent EU sanctions (see paras. 103–110 of that judgment).

There is no reference to ‘certain families’ in the EU sanctions legal framework as was the case in the Syrian sanctions regime. Thus, the Court of Justice might not so easily accept a presumption of circumvention based on a sole family link (taken in consideration the Court of Justice’s Tay Za reasoning, and the Advocate General’s Opinion). It is only if the Council could provide solid evidence that there is indeed a ‘systematic practice of distributing their and assets amongst their immediate family members’ (see Recital 5 of Council Decision of 5 June 2023), that the Court of Justice might accept the Council’s rationale, accounting for fundamental rights too.

This information of a ‘systematic practice’ of circumvention might be in the Council’s possession, but it might not be possible to disclose the evidence based on its classified nature. The alternative is disclosing classified evidence, which the Council may be reluctant to do. The Court of Justice’s closed evidence procedure (under Article 105 of the General Court’s Rules of Procedure), introduced as a possibility for use in restrictive measures cases, to date, remains inactive, and has never been utilised.


Immediate family members have been included in EU sanctions lists since early 2022 as ‘associated’ with leading Russian businesspersons in their individual statements of reasons. In Prigozhina, the Council was not able to establish ‘(economic) association’ of the mother of the chief of the Wagner Group at the time the measures were adopted, and sufficiently link her to her son, the primary target, and the Russian government. Thus, the General Court relied on its established case law of Tay Za regarding an ‘association’ which considers a mere family tie to the primary target, a business leader, associated with the government not sufficient. That said, the General Court in Prigozhina ruled that there is a ‘non-negligible risk’ that individuals providing support to the government, e.g., leading businesspersons, might exert pressure on individuals associated with them, e.g., their family members, in order to circumvent the effect of the measures to which they are subject (para. 105 of the Prigozhina judgment. See also Amer Foz v Council, Case T-296/20 ECLI:EU:T:2022:298, paras. 174 and 176, Sharif v CouncilT-540/19, not published, EU:T:2021:220, paragraph 159, and, by analogy, judgment of 4 September 2015, NIOC and Others v CouncilT-577/12, not published, EU:T:2015:596, para. 139).  

Businesspersons vs rulers

Generally speaking, the case law of the Court on the legality of family members’ designations is characterized by two main approaches. Regarding family members of leading businesspersons, their designation would be annulled if based on the sole ground that the family member also benefits from the economic policies of the government (Tay Za approach). Regarding the family members of rulers of a third country, their designation would be lawful by a presumed connection between the individual and the (targeted) regime (Al Assad approach). The case law has been though at times inconsistent. For a broader analysis on circumvention of EU restrictive measures, see Francesa Finelli, ‘Countering Circumvention of Restrictive Measures: The EU Response’.

In Al-Assad, another Syrian ‘immediate family member’ case (concerning the President’s sister), the Court of Justice found that the presumed risk of circumvention was ‘quite obvious’ between leaders of a state and their immediate family members. It also observed that, if the EU sanctions in question targeted only the leaders of the Syrian regime, the objectives pursued by the Council could have been frustrated as the leaders can ‘easily circumvent’ those measures by means of their relatives and associates.

The Al-Assad approach has generally not been followed by the CJEU in the case of immediate family members of leading business persons (see Tay Za) but only in cases of ‘immediate family members’ of rulers of a third country (see Butler, G 2023, 'Of Rulers, Relatives, and Businesspersons: The Imposition of EU Restrictive Measures through Sanctions on Family Members', Legal Issues of Economic Integration, vol. 50, no. 4). The rationale is explained by Advocate General Mengozzi in his Opinion in Tay Za with three circles of targeted individuals, which has been accepted by the CJEU. In the Syrian sanctions case of Foz, the CJEU  accepted the presumption of a real risk of circumvention, in a case of an immediate family member of a leading business person operating in Syria case.  The Court of Justice ruled in that case that it is reasonable to presume a ‘real risk of circumvention’ if a family member has close business and family ties with a designated individual, even when the designated person is a leading businessperson and not a political leader in Syria. Moreover, it found that family ties may pose a real risk of circumvention of EU restrictive measures, irrespective of the role of the designated individual in the targeted regime (see Finelli, ‘Countering Circumvention of Restrictive Measures: The EU Response’).

The relevance of presumptions

Generally, the CJEU has accepted indirect evidence such as rebuttable presumptions in view of the difficulties encountered by the Council to find direct evidence (see para 46 Anbouba v Council, C-605/13 P, ECLI:EU:C:2015:248) for the fact than an individual like an immediate family member of a primary target supports a regime or benefits from it. In Syrian sanctions cases, since 2015, the Council consistently relied on and the Court of Justice accepted rebuttable presumptions rather than evidence that they have engaged in prohibited conduct. Their designation presupposes the personal link between them and the already designated individuals, and ultimately the third country’s regime targeted.

Consistent case law of the Court of Justice provides that the use of presumptions is only permitted on the condition that (i) those presumptions have been provided for by the measures at issue, (ii) are consistent with the objective of the legislation at issue, (iii) proportionate to the aim pursued by the EU, (iv) rebuttable and (vi) safeguard rights of defence are safeguarded (see Case T‑714/20, Ovsyannikov v Council, ECLI:EU:T:2022:674).

The Council will need to establish that the inclusion of immediate family members of Russian business leaders is proportionate to the pursued aim of inter alia preventing circumvention of the sanctions imposed.

At the moment it is unclear whether the Court implied in the case of Prigozhina that the ‘real risk of circumvention’ through family members can only be invoked in the context of EU sanctions against Syria (see Finelli, ‘Countering Circumvention of Restrictive Measures: The EU Response’). The established case law of Tay-Za provides there can be no presumption that leading businesspersons with links and association to a governing regime are using their family members for circumventing EU sanctions (see Butler, 'Of Rulers, Relatives, and Businesspersons’).

The Court of Justice has accepted presumptions if they are rebuttable, but rebuttals for targeted individuals are immensely difficult and have not been successful in most Syrian sanctions cases before the Court of Justice since the presumptions were introduced (see the Zubedi and Bashar Assi judgments).

The family member would have to demonstrate to the Council that s/he has dissociated himself from a parent, child – the primary target – and that s/he does not pose a real risk of circumvention of the restrictive measures. Rebuttals may be possible based on evidence that immediate family members do not assist the primary target to have access or continue controlling the assets.  A difficult task.

The risk of circumventing EU sanctions

The risk of circumvention is considerable in the case of leading businesspersons operating in Russia and their immediate family and the Court of Justice might well opt in developing its case law further for the Russian sanctions context instead of simply continue applying its Tay-Za case law. Similarly, as in the RT France case, it might opt for an exceptional reasoning due to exceptional circumstances. It might even apply its case law on the immediate family of rulers, rather than on the immediate family of leading businesspersons, finding that in certain exceptional cases leading businesspersons are comparable to rulers in the Russian context.

A balance will have to be struck by the Court of Justice between the fundamental rights of the targeted immediate family members, who might pose no risk of circumvention whatsoever and the difficult task to rebut presumptions, on the one hand, and the importance of the effectiveness of targeted sanctions against Russia, accounting for the Council’s ability in certain cases to rely on presumptions on the other hand (for the reasons it set out in its case law (e.g., in Anbouba v Council, para. 46). A general blunt presumption of circumvention of sanctions in cases of immediate family members of leading businesspersons operating in Russia is unlikely to be accepted by the Court of Justice.