The European Union’s non-contractual liability following country and counterterrorism sanctions: Is there anything to learn from the Safa Nicu Sepahan case?
| Author | Michele Messina |
| Published date | 01 October 2018 |
| Date | 01 October 2018 |
| DOI | 10.1177/1023263X18806478 |
| Subject Matter | Case note |
Case note
The European Union’s non-
contractual liability following
country and counterterrorism
sanctions: Is there anything
to learn from the Safa Nicu
Sepahan case?
Case C-45/15 P Safa Nicu Sepahan Co. v Council,
EU:C:2017:402
Michele Messina*
Abstract
This article focuses on the actions aimed at compensating for the damage suffered by natural and
legal persons following the imposition of EU country or counterterrorism restrictive measures.
The judgments in the Safa Nicu Sepahan case, where the EU Courts deliberated for the first time on
the award of non-material damage, constitute the basis for the analysis of the relevant EU
jurisprudence in the field often too reluctant to award damages, in accordance with the traditional
conservative approach of the EU Courts towards the non-contractual liability of the Union.
Despite the award of non-material damages, the judgments in Safa Nicu Sepahan might not
necessarily entail a breakthrough towards an increased willingness of EU judges to award damages
in the area of country or counterterrorism restrictive measures. They would rather constitute a
natural and coherent evolution of the existing case law, strictly related to the specific circum-
stances of the case.
Keywords
EU Non-Contractual Liability, EU Country sanctions, EU Counterterrorism sanctions
* University of Messina, Italy
Corresponding author:
Michele Messina, University of Messina, Piazza XX Settembre 1, Messina, 98122, Italy.
E-mail: messinam@unime.it
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(5) 631–648
ªThe Author(s) 2018
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DOI: 10.1177/1023263X18806478
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1. Introduction
The widespread use of restrictive measures as a result of country as well as counterterrorism
sanctions has raised many problems from the point of view of the protection of fundamental rights
of the natural and legal persons involved.
1
In particular, there are problems concerning the limita-
tion of their right to adversarial and effective judicial protection.
2
In fact, especially as regards the
sanctions deriving from United Nations Security Council resolutions, the black lists containing the
names of suspects are drafted by the UN Sanctions Committees on the basis of information from
states and international organisations, with no particular possibility for the natural and legal
persons concerned to be able to significantly affect their inclusion and exclusion from these lists.
The Council of the European Union (‘Council’ or ‘EU Council’) has not appeared particularly
scrupulous in providing sufficient and additional evidence to that in the UN documents, for the
adoption of EU Common Foreign and Security Policy (CFSP) decisions, and, most importantly,
when adopting the regulations implementing the restrictive measures thereof in the EU legal order,
pursuant to Article 215(2) Treaty on the Functioning of the EU (TFEU).
3
1. In this regard, it should be noted that, compared to the previous Article 301 EC (Nice), Article 215(3) TFEU, adds an
obligation on the part of the institutions of the EU, according to which the acts prescribing restrictive measures must
contain ‘the necessary provisions on legal safeguards’. The expression clearly refers to the need to protect the rights of
the subjects involved, whether they are the recipients of the measures or third parties indirectly affected by the restrictive
measures. Precisely by virtue of this new provision on legal guarantees that was introduced in Article 215(3) TFEU, the
General Court considered that provision as respectful of the fundamental rights of natural and legal persons to whom
restrictive measures were addressed. See, Joined Cases T-174/12 and T-80/13 Syrian Lebanese Commercial Bank SAL v.
Council, EU:T:2014:52, para. 159–164. The issue of the protection of fundamental rights of the persons involved has
been recently addressed in a study of the European Parliamentary Research Service, available at European Parliament,
‘The cost of non-Europe in the fight against terrorism’, European Parliament (2018), https://epthinktank.eu/2018/05/28/
the-fight-against-terrorism-cost-of-non-europe-report/.
2. The CJEU identified a key-argument determining the scope of the derogation to the limitation on the EU Court’s
competence in the field of CFSP in general principles, including the rule of law, of which effective judicial review is an
inherent part, See, in particular, Case C-439/13 P Elitaliana v. Eulex Kosovo, EU:C:2015:753; Case C-455/14 P Hv.
Council and Commission, EU:C:2016:569 and, also, Case C-72/15 PJSC Rosneft Oil Company v. Her Majesty’s
Treasury and Others, EU:C:2017:236, para. 73–74, where the EU Court affirmed that ‘the very existence of effective
judicial review designed to ensure compliance with provisions of EU law is of the essence of the rule of law’, and that,
‘the principle of effective judicial protection implies that the exclusion of the EU Court’s jurisdiction in the field of
CFSP should be interpreted strictly’. Therefore, the CFSP is not excluded from the operation of general principles, which
form part of the EU acquis, and the EU Court links its own jurisdiction to the protection of those principles. See, M.
Cremona, ‘Effective Judicial Review Is of the Essence of the Rule of Law: Challenging Common Foreign and Security
Policy Measures Before the Court of Justice’, 2 European Papers (2017), p. 671–697, 685 and, D. Del Vescovo, ‘Il
principio della effettivit`adella tutela giurisdizionale: allaricerca deldifficile equilibrio tralotta al terrorismoe tutela dei
diritti fondamentali’, 1 Nomos (2018), p. 1-33. On a comprehensive analysis of the CJEU’s jurisdiction to review CFSP
acts, see, C. Beaucillon, ‘Opening up the Horizon: The CJEU’s new take on Country Sanctions’, 55 Common Market
Law Review (2018), p. 387–416. For a comment on Rosneft case, see, S. Poli, ‘The Common Foreign Security Policy
after Rosneft: Still imperfect but gradually subject to the rule of law’, 54 Common Market Law Review (2017), p. 1799–
1834.
3. The restrictive measures adopted pursuant to Article 215 TFEU may stem from previous UN Security Council reso-
lutions, based on Chapter VII of the UN Charter, or be unilaterally decided by the EU Council in the CFSP field. In the
first case, rather frequently, the EU restrictive measures are adopted by reproducing the UN Security Council resolutions
aimed at ensuring the maintenance of international peace and security in crisis situations. In the second case, the
restrictive measures can be decided by the EU on its own initiative. The origin of the sanctioning measures naturally
effects the discretion of the EU institutions in determining the content of the regulation adopted pursuant to Article 215
TFEU. In fact, in the first case, the EU institutions must determine the sanctions, taking due account of the terms and
632 Maastricht Journal of European and Comparative Law 25(5)
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