EU Counter-Terrorist Sanctions against Individuals: Problems and Perils

This article gives a comprehensive account of the shortcomings of the European Union's (EU's) policy of sanctioning terrorist suspects and makes tentative suggestions on how to resolve them.

While much has been written on the case law of the EU courts on counter-terrorist sanctions, the actual practice of adopting these measures has attracted much less attention. Imposing sanction on individuals remains qualitatively and quantitatively the most important Common Foreign and Security Policy of the EU, and individuals continue to bring challenges against sanctions before the EU courts. At the same time, many issues surrounding the EU's sanctioning practice remain unresolved. This article addresses these issues.

Individual sanctions are not only the cornerstone of EU counterterrorist policies but also an oddly harmonized form of EU criminal law. The EU institutions continue to adopt sanctions based on pre-Lisbon instruments, which fall outside the jurisdiction of the court. Uncertainty surrounds the choice of the correct legal basis under the Treaty on the Functioning of the European Union (TFEU).The composite adoption procedure of autonomous EU sanctions does not give those sanctioned the necessary opportunities to be heard. Finally, pre-emption sandwiches Member States between EU law and their obligations under the UN Charter.