Proportionate Sanctions? Balancing Effectiveness and Fundamental Rights before the CJEU

Table of Contents: 1. Introduction. – 2. EU sanctions as proportionate sanctions. – 3. The proportionality review of sanctions before the CJEU. – 3.1. The manifest inappropriate test: reviewing the proportionality of policy measures. – 3.1.1. The proportionality plea raised by Russian businesspersons against the ‘criterion (g)’. – 3.1.2. The proportionality plea raised by a Russian citizen against piloting restrictions: the Islentyeva case. – 3.2. The fundamental rights test: reviewing the proportionality of individual measures (designations). – 3.2.1. The ‘full review’ in the light of fundamental rights. – 3.2.1. The ‘full review’ in the light of fundamental rights. – 3.2.2. The multi-step review. – 3.2.3. The four-step review in RT France – 3.2.4. The proportionality review after RT France. – 4. Conclusions.

Abstract: The European Union relies on restrictive measures and sanctions as one of its primary tools of foreign policy. These measures are intended to be targeted, effective, as well as proportionate. The general principle of proportionality is, in fact, one of the constitutional pillars of the Union, which aims to limit the scope and intensity of EU action. It requires that any decision made, including the imposition of restrictive measures, shall not exceed what is necessary to achieve the objectives pursued by the Union itself. In addition, the EU Charter further enshrines the key role of proportionality in regulating any limitation on the exercise of fundamental rights. In this legal framework, the principle of proportionality becomes a methodological imperative for the imposition of EU sanctions. Although the effectiveness of these decisions is essential for the credibility of the Union as a global actor and the advancement of the Council’s political agenda in the Common Foreign and Security Policy (CFSP), the pursuit of effectiveness is not unbound. The principle of proportionality represents a constitutional safeguard, limiting the Council’s discretion to impose excessive restrictions and unlawful interferences with the fundamental rights of targeted persons. By assessing the caselaw of the Court of Justice of the European Union (CJEU), this paper intends to shed light on the principle of proportionality in the judicial review of EU sanctions. It focuses on alleged breaches of the principle of proportionality raised before the Luxembourg judges, and presents how they review the legality of sanctions, balancing effectiveness with fundamental rights.

Keywords: restrictive measures – sanctions – proportionality – judicial review – CJEU – fundamental rights.

1.   Introduction

The general principle of proportionality is central to the EU legal order. Enshrined in the Treaties and in the Charter of Fundamental Rights, it has been defined as ‘the most influential principle of EU law’.[1] This principle is one of the constitutional pillars of the Union, intended to limit the scope and intensity of EU action. Whilst it was first recognised as an unwritten general principle of EU law,[2] ‘proportionality’ subsequently found specific expression in primary law, particularly in Article 5(4) TEU and Article 52(1) of the Charter.[3] The former requires that any EU action made shall not exceed what is necessary to achieve the objectives pursued by the Union itself;[4] whereas the latter illustrates the key role of proportionality in regulating any limitation on the exercise of the fundamental rights and freedoms.[5]

Since the entry into force of the Lisbon Treaty,[6] the principle of proportionality fully applies to CFSP matters,[7] including the adoption of restrictive measures, as they are an integral part of the EU constitutional architecture. It has been argued that CFSP acts constitute an integral aspect of a ‘constitutionalised foreign policy’, and shall be designed according to a specific ‘legal DNA’.[8]Therefore, it seems logical to argue that sanctions must be a proportionate tool of the Union’s foreign policy. They must not exceed what is necessary to achieve the (CFSP) objectives pursued by the Council,[9] and must not lead to disproportionate limitations on the exercise of fundamental rights and freedoms. 

In practice, however, assessing the proportionality of EU sanctions is not a straightforward exercise. Accordingly, the purpose of this paper is to shed light on the proportionality review of EU sanctions by analysing the extent to which this general principle influences the judicial scrutiny of the Court of Justice of the European Union (CJEU). 

2.   EU sanctions as proportionate sanctions

The Union relies on restrictive measures, sanctions,[10] as one of its primary tools of foreign policy. These measures are intended to be targeted restrictions, designed to have an impact on specific subjects rather than an entire country or population. In the words of the Council, sanctions ‘aim at those responsible for the policies or actions the EU wants to influence’.[11] They are ‘not punitive’ restrictions that ‘seek to bring about a change in the policy or conduct of those targeted, with a view to promoting [CFSP] objectives’.[12]

The concept of targeted sanctions aligns with the idea of imposing precise and ultimately proportionate restrictions on specific subjects. In contrast to comprehensive and indiscriminate sanctions (such as in the form of total embargoes), they aim at specific economic sectors and/or specific persons, allegedly responsible for the policy or conduct that the Union wants to change. Targeted sanctions seem to hold great promise as a powerful tool that could be used with precision, minimizing disruptive effects on civilian populations and innocent bystanders. For this reason, targeted sanctions have also been defined as ‘smart’ sanctions.[13]

Despite the key role of targeted sanctions in the Union’s foreign policy, they lack a clear definition under EU law. Sanctions are mainly regulated by soft law instruments,[14] which provide guidance on their design, decision-making and implementation process. Soft law guidance also illustrates the objectives pursued by sanctions and the key principles that underpin the targeting process – including the principle of proportionality. The Sanctions Guidelines, for instance, explicitly provide that the restrictions imposed by the Council ‘must always be proportionate to their objective’.[15] Moreover, they indicate that sanctions ‘should be drafted’ in light of the obligation to respect fundamental rights.[16]

At this point, the underlying questions become the following: what is a proportionate sanction under EU law? And what is a proportionate interference with the fundamental rights impacted by EU restrictive measures? There are no straightforward answers.[17]

On the one hand, the pursuit of sanctions effectiveness guides the Council’s decision-making process,[18] and may result in the adoption of less-targeted restrictions against a progressively wider group of targets. When effectiveness is at risk, the Council may decide to intensify the restrictions in force, adopting progressive waves of sanctions (also called ‘sanctions packages’) and implementing aggressive anti-circumvention strategies.[19] In fact, the effectiveness of sanctions is crucial for ensuring the EU’s credibility as a global actor and advancing the Council’s political agenda in CFSP. In this context, the Council may decide to expand the scope of sanctions and stretch the concept of targeted restrictions. Accordingly, sanctions may escalate – in light of geopolitical circumstances and/or attempt to constrain circumvention practices. This could result in de facto comprehensive restrictions, which raise proportionality and fundamental rights concerns. A clear example of a ‘sanctions escalation’ can be observed in the use of (formally) targeted sanctions against Russia after the full-scale aggression of Ukraine since February 2022.[20]

On the other hand, the pursuit of effectiveness does not represent the sole guiding principle in the Council’s sanctioning process. As illustrated above, the general principle of proportionality functions as a constitutional imperative, thereby constraining the Council’s political discretion. In other words, sanctions effectiveness is not unbound.

The CJEU plays a key role in balancing the pursuit of sanctions effectiveness and the proportionality of these restrictions. Although CFSP matters are governed by ‘specific rules and procedures’, and are generally excluded from the judicial review of the Luxembourg judges,[21] Article 275(2) TFEU establishes the primary responsibility of the CJEU to review ‘the legality of decisions providing for restrictive measures against natural or legal persons’. In this way, the judicial scrutiny of EU sanctions represents the exception (more precisely, the exception to the exception) in CFSP matters.[22] The Court is explicitly empowered to review the legality of these EU acts. However, it must be highlighted that the Treaties place clear limits on the Court’s jurisdiction, precluding the review of all forms of sanctions. 

According to settled case‑law, the Court is not competent to rule on measures of general application contained in CFSP Decisions – since Article 275(2) TFEU allows the Court to review ‘restrictive measures against natural or legal persons’, and it is the individual nature of those measures which permits access to the CJEU.[23] As a result, the legality and proportionality of restrictive measures, as CFSP policy decisions, are not subjected to the full judicial scrutiny of the Luxembourg judges: this settled case‑law impose significant constraints on the review of these foreign policy acts – while the CJEU retains full jurisdiction to rule on individual designations contained in CFSP Decisions, as well as on the legality of Regulations adopted on the basis of Article 215 TFEU, which gives effect to the positions adopted by the Union in the context of the CFSP.[24]

Focusing on the proportionality of restrictive measures that fall within the Court’s jurisdiction (either in the form of Council Decisions or Regulations), the following analysis aims to illustrate how the intensity of review varies considerably depending on the pleas of illegality raised by applicants.

3.   The proportionality review of sanctions before the CJEU

Over the years, hundreds of cases have been brought before the Court whereby the applicants, usually natural or legal persons targeted by restrictive measures, have challenged the validity of these EU acts.[25] In this context, the Court, in particular the General Court (GC), has been repeatedly asked to rule on the legality of sanctions through direct actions for annulment, whereby the applicants contest the legality of their designations in CFSP Decisions (and non-CFSP Regulations),[26] and invoke infringements of fundamental rights and the principle of proportionality. Yet, it should be emphasized that the intensity of review exercised by the Luxembourg judges is not characterised by a single review mechanism (or proportionality test). On the contrary, the caselaw of the CJEU reflects two main judicial methodologies to assess the legality (and proportionality) of these acts.

3.1.  The manifest inappropriate test: reviewing the proportionality of policy measures

Where proportionality is invoked as a ground for review of policy measures, also referred to as ‘measures of general application’,[27] the CJEU does not apply a rigorous test. In fact, if the Court is asked to rule on the suitability of sanctions imposed against third countries, such as the restrictions imposed on certain economic sectors in Iran or Russia, it reaches the conclusion that the Council must be allowed a broad discretion – and the Court shall not intervene in the substantial governance of CFSP.[28] The Court usually confines itself to determining whether the contested measure is ‘manifestly inappropriate’ to achieve the objective pursued. 

For example, when the Court is asked to assess the proportionality of designation criteria as ‘general rules on the basis of which [the Council decides who to include] on the [sanctions] lists’,[29] it reaches the following conclusion: ‘the EU legislature must be allowed a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments’.[30] The Court maintains that the validity of designation criteria can be affected ‘only if the measure is manifestly inappropriate’, meaning manifestly disproportionate, having regard to the objectives which the Council is seeking to pursue.[31] The CJEU tends to emphasise the importance of the objectives pursued by the contested policy measures, and refrains from annulling sanctions for being manifestly disproportionate decisions. This suggests that the manifestly inappropriate test is applied in a deferential manner to protect the Council’s political discretion.

The CJEU usually dismisses the applicants’ pleas, rejecting the existence of an infringement of the principle of proportionality vis-à-vis policy measures. It recognises that the Council has to carry out complex evaluations in CFSP matters. In this context, the Court prefers to perform a restricted judicial scrutiny with regard to the appropriateness of the contested measure of general application. It also acknowledges that the Council is not required to prove that the provision at stake is able to achieve the desired effect, ‘but only that [it is] capable of having such an effect’.[32] It follows that the proportionality (and suitability) test is not particularly demanding for policy measures.

In Anbouba, the Court ruled on the legality of designation criteria contained in the Syria sanctions regime, and it observed that the Council enjoys a large margin of discretion in designing these criteria.[33] In carrying out the proportionality assessment of the contested provisions, it found that ‘account may be taken of the context of those measures, of the fact that there was an urgent needto adopt such measures intended to put pressure on the Syrian regime in order for it to stop the violent repression against the population, and of the difficulty in obtaining more specific evidence in a State at civil war and having an authoritarian regime’.[34]

In numerous Iranian cases, the Court confirmed that ‘limited review’ applies to the considerations of appropriateness in relation to policy measures, such as designation criteria.[35] Similarly, in Russian cases, the Court referred to the ‘manifest inappropriate test’ when assessing the proportionality of designation criteria, as provisions of general application on the basis of which the Council decided to enter the applicants’ names on the EU sanctions list. In Almaz-Antey, the Court rules that by targeting ‘persons and entities materially or financially supporting actions which undermine or threaten the territorial integrity, sovereignty and independence of Ukraine, the Council could legitimately expect that such actions cease or that they become more costly for those who undertake them, in order to promote a peaceful settlement of the crisis’.[36] In Rosneft, the Court also found ‘a reasonable relationship’between the contested designation grounds and the objective pursued by them’.[37] The Court considered it ‘reasonable’ to increase the costs to be borne by the Russian Federation for its actions in Ukraine, and justifies the Council’s decision to target a major player in the oil sector, which is moreover predominantly owned by the Russian State.[38] The designation of Rosneft was deemed to be ‘consistent’ with the objective pursued by the Council, and was not considered to be manifestly inappropriate with respect to that objective.[39] Similarly, when the Council decided to add Russian financial actors to the EU list, the Court consistently applied the ‘manifest inappropriate test’ and recognised that ‘targeting Russian public banks consistently meets’ the objective of increasing the cost of the actions of the Russian Federation.[40] More recently, in the Russian Direct Investment Fund case, the Court confirmed the existence of a ‘reasonable relationship’ between targeting the Russian sovereign wealth fund, given its status as an important channel for foreign investment in the Russian Federation, and the objective pursued by the Council of increasing the costs of the actions of the Russian Federation.[41]

Hence, when the proportionality of policy measures is contested, the CJEU performs a limited judicial review, which tends to confirm the legality of the contested measure and the ‘reasonable’ decision-making of the Council in the pursuit of CFSP objectives.

3.1.1.   The proportionality plea raised by Russian businesspersons against the ‘criterion (g)’

Since February 2022, the Union has imposed unprecedented sanctions in response to Russia’s full-scale aggression against Ukraine. The Council has not only introduced broad sectoral (economic) restrictions, but also expanded the designation criteria in Council Decision 2014/145/CFSP (complemented by Regulation (EU) No 269/2014) to identify a progressively wide range of natural and legal persons to be added to the EU sanctions list. Today, over 14 different designation criteria are in force in Russia sanctions regime, which allow the Council to target over 2,400 persons. 

Among the new listing criteria, the so-called ‘criterion (g)’ represents one of the most relevant (as well as contested) amendments post-2022.[42] This criterion ground allows the Council to target leading businesspersons in Russia, most commonly known as ‘Russian oligarchs’.[43]

Given the broad scope of application of the criterion (g), it is unsurprising that its legality has been contested before the CJEU.[44] Nonetheless, when reviewing its proportionality, the General Court has found ‘a rational connection between the targeting of leading businesspersons operating in economic sectors providing substantial revenue to the [Russian] government, in view of their importance and the importance of those sectors for the Russian economy, and the objective of the restrictive measures [...], which is to increase pressure on the Russian Federation as well as the costs of its actions to undermine Ukraine’s territorial integrity, sovereignty and independence’.[45] The Court has justified the Council’s targeting process as a reasonable, rational, and therefore not manifestly disproportionate.

Even when the Council has decided to intensify the scope of restrictive measures and expanded the scope of the criterion (g) in June 2023,[46] thereby widening the circle of businesspersons subject to EU sanctions, the Court has justified such an escalation. It has acknowledged that, if existing restrictions do not successfully (or sufficiently) achieve the objectives pursued by the Council, the latter is entitled to exert further pressure and strengthen designation grounds. So far, the pursuit of sanctions effectiveness seems to outweigh proportionality concerns. In the Abramovich ruling, the GC confirms that ‘there is still a logical link’ in targeting this growing number of businesspersons who operate in Russia, taking into account the developments of the situation in Ukraine.[47]Similarly, in OT, the Court recognises the proportionality of the criterion (g) in light of the prime importance of maintaining peace, security and stability in Europe.[48]

Although the amended criterion (g) refers to both leading and non-leading businesspersons operating in Russia, enabling the Council to target a wide group of entrepreneurs (rather than only prominent figures), the GC upholds that the Council has made ‘a rational decision’ in broadening the scope of that listing criterion in order to achieve the objectives pursued by Russia sanctions.[49]It acknowledges that this expansion ‘reflects the Council’s intention [..] to exert maximum pressure on the Russian authorities so that they bring an end to their actions and policies destabilising Ukraine’.[50]

Hence, the judicial review of the CJEU does not provide concrete guidance for establishing the ‘off-limits’ for the adoption (and expansion) of designation criteria. More generally, when assessing the legality of these policy measures, the Court does not usually impose substantive constraints on the Council’s discretion. The Luxembourg judges demonstrate a significant degree of deference to the expertise of the Council, and prefer to perform only a marginal review of proportionality. 

3.1.2.   The proportionality plea raised by a Russian citizen against piloting restrictions: the Islentyeva case

As illustrated above, it is a common practice for the CJEU to reject pleas of illegality when applicants challenge the proportionality of sanctions as measures of general application. However, there is one notable exception to this judicial trend: the Islentyeva case.[51] In this case, the GC found the manifest inappropriateness of restrictive measures insofar as they restrict a Russian citizen from piloting a plane in the EU. 

The dispute originates from a provision adopted by the Council in February 2022, which prohibits, inter alia, any aircraft ‘controlled by any Russian natural person’ from landing in, taking off from, or overflying, the territory of the Union.[52] The applicant, Ms. Islentyeva, found herself targeted by this prohibition, as she is a Russian national who holds a Luxembourgish private pilot license and uses aeroplanes in Luxembourg. She decided to bring an action for annulment, challenging the prohibition laid down by the Council, insofar as it prevents her from piloting an aircraft within the European Union. 

Before the GC, the Council argued that the imposition of restrictions on non-Russian-registered aircraft that are economically or financially controlled by Russian citizens contributes to the objective of exerting pressure on Russian authorities. Such restrictions are intended to affect the Russian aviation sector economically and increase the costs of Russia’s war of aggression.[53] The European Commission supported the Council’s position by submitting that the concept of ‘control’ must be interpreted broadly. The Commission argued that a person is regarded as ‘controlling’ an aircraft not only where he or she has economic or financial control of the aircraft, but also when having technical or operational control, inter alia, ‘when flying privately as a pilot’.[54] It further submitted that ‘a broad interpretation is consistent with the objective of preventing the circumvention of restrictive measures’.[55]

Yet, the GC took a different approach. It recalled that the general principle of proportionality requires any EU action to be appropriate for attaining legitimate objectives and must not go beyond what is necessary to achieve them.[56] Consequently, it held that a comprehensive prohibition on landing, take-off or overflying the territory of the European Union applicable to any aircraft controlled by a Russian citizen would be ‘manifestly inappropriate in the light of the objective of exerting pressure on the Russian President and his government capable of stopping the violations of international law and preserving the territorial integrity of Ukraine’.[57] The GC interpreted the prohibition imposed by the Council as applying to Russian citizens insofar as they control the aircraft. It clarified that the notion of control must be intended to refer to an economic or financial control, rather than a technical or operational control, of the aircraft. It concluded that the contested provision must not affect the situation where, as in the present case, a Russian citizen pilots a non-Russian-registered aircraft, which is not owned or chartered, or otherwise controlled by a Russian person, entity or body.

The Islentyeva ruling represents an exceptional example in which the GC found the manifest inappropriateness of the contested provision insofar as it was interpreted to apply to the applicant – on the grounds of her sole nationality. It rejected any alleged risk of circumvention, limiting the pursuit of sanctions effectiveness (as well as the political discretion of the Commission in interpreting the notion of ‘control’). 

3.2.  The fundamental rights test: reviewing the proportionality of individual measures (designations)

While the CJEU does not usually interfere with the Council’s political discretion in shaping the scope of restrictive measures, a different judicial development can be observed when applicants invoke an infringement of the principle of proportionality in conjunction with fundamental rights violations. In this scenario, applicants typically contest the legality of their designations, i.e., decisions of an individual nature that give concrete applicability to policy measures. 

Similarly to the ECtHR in Strasbourg, the CJEU here becomes the guardian of proportionality, responsible for striking a fair balance between political (CFSP) objectives and individual rights.

3.2.1.   The ‘full review’ in the light of fundamental rights

Since the landmark case Kadi, the CJEU has affirmed that the judiciary ‘must ensure the review, in principle the full review’, of the lawfulness of all EU acts in the light of fundamental rights.[58] This is an essential component of the European Union as a ‘community based on the rule of law’, which shall guarantee a complete system of legal remedies and procedures, so that the CJEU may review the legality of acts carried out by the institutions.[59] Since Kadi, the Court has recognised its central role in assessing the legality of EU sanctions. 

Throughout the years, the CJEU has found that restrictive measures are detrimental to the targets’ fundamental rights – as well as their reputation and (professional) legal interests.[60] ‘By definition’, these measures have consequences which affect fundamental rights, thereby causing harm to their targets (and even to persons who are in no way responsible for the situation which led to the adoption of the sanctions).[61] For instance, asset freezing measures ‘undeniably’ entail a restriction of the right to property and affect the private life of any targeted person.[62]

However, the Court’s caselaw underscores that fundamental rights affected by EU sanctions are ‘not absolute’ rights, and their exercise can be subject to (justified) restrictions.[63] In fact, the assessment of any detrimental impact on fundamental rights must be evaluated in relation to the objectives of public interest pursued by the Union. And, given the ‘primordial importance’ of the preservation of international peace and security, which are the underlying ultimate objectives of EU sanctions, the Court tends to justify the negative consequences of these measures – as not disproportionate restrictions in relation to the ends sought.[64]

The Luxembourg judges usually hold that ‘the disadvantages caused [by sanctions] are not inordinate in relation to the ends sought’.[65] In this way, the proportionality test applied in Luxembourg generally favours the importance of the sanctions objectives (and the Council’s political discretion). 

Individual rights and freedoms are often eclipsed by objectives of general interest recognised by the Union as such. To the author’s knowledge, there is only one exception, namely, only one applicant who successfully challenged the legality of his designation on the grounds that EU restrictive measures were disproportionate interferences with his fundamental rights. This exception concerns Mr. Kadi and his judicial saga in Luxembourg, precisely. 

In the Kadi I ruling,[66] the Court of Justice found that, ‘in the circumstances of the case’, the imposition of the restrictive measures in respect of the applicant constitutes an unjustified restriction of his fundamental rights (i.e., his right to property, right of the defence, in particular his right to be heard, and his right to effective judicial review).[67] Despite the fact that, in principle,[68]Mr. Kadi’s fundamental rights may be restricted because of the importance of the aims pursued by the Community (now European Union),[69] namely countering terrorism and its financing, the Court determined that the contested designation was adopted without any guarantee for Mr. Kadi to understand the reasons for his listing and, consequently, to contest that decision (i.e., ‘enabling him to put his case to the competent authorities’).[70] In light of the (very specific) circumstances of the case, the Court concluded that EU restrictions imposed on Mr. Kadi did constitute a disproportionate and intolerable interference with his fundamental rights.

Mr. Kadi was exceptionally successful in challenging the proportionality of his designation in Luxembourg because, in that (very) specific case, the Council had not provided any reasons or evidence to support that designation. He was put on the sanctions list with no motivation – and could only guess as to the reasons behind his designation. Accordingly, the Court ruled that the Council’s decision constitutes an unjustified interference with Mr. Kadi’s fundamental rights – as it was ‘ adopted without furnishing any guarantee’ to contest it.[71]

Nonetheless, with the exception of the Kadi ruling, the Luxembourg judges have traditionally refrained from welcoming pleas of proportionality with regard to alleged fundamental rights infringements resulting from EU sanctions. In fact, the assessment of proportionality tends to tip towards the importance of the foreign policy objectives pursued by the Union. When proportionality is invoked in relation to fundamental rights interferences, the CJEU tends to confirm the legality of EU sanctions. 

Furthermore, the Court justifies the alleged interferences by stressing the fact that sanctions constitute temporary and precautionary measures,[72] rather than endless and punitive restrictions on fundamental rights. For instance, the Court highlights that freezing measures are limited in time and reversible decisions (subject to periodic review).[73] These economic restrictions also provide for exceptions, allowing the affected persons to obtain funds and economic resources to meet certain expenses and needs.[74]

3.2.2.   The multi-step review 

Since Kadi, the concept of proportionality has gained significance in the sanctions caselaw and been subjected to a more rigorous and structured assessment, incorporating a judicial methodology that aligns more closely with the text of Article 52(1) of the Charter. Consequently, the ‘full review’ of sanctions has progressively entailed a multi-step assessment of the alleged interferences on fundamental rights – as opposed to a vague balancing exercise ‘between the demands of the public interest and the interest of the individuals concerned’.[75]

Since 2014, an increasing amount of sanctions caselaw has explicitly referred to Article 52(1) of the Charter. In this way, the proportionality test set out therein has acquired a new visibility in the context of sanctions litigation. Initially, in 2014, the EU judiciary adopted a two-step approach.[76] Then, in 2015, the Court moved to a three-step approach.[77] More recently, in 2022, the General Court proposed a four-step approach, which marks the latest frontier of the proportionality test developed in Luxembourg.[78]

This transition from an unstructured balancing exercise to a multi-step (now 4-step) assessment illustrates the evolving role of the CJEU in reviewing alleged infringements of fundamental rights in Luxembourg: if it initially ruled on the lawfulness of sanctions according to no judicial methodology, now it conducts a structured review – which aligns with the wording of the Charter. Rather than a deferential review, which favours (CFSP) political objectives over fundamental rights, it requires a more thorough balance of the (public and private) interests at stake.

3.2.3.   The four-step review in RT France

On 27 July 2022, the General Court (GC), sitting in a Grand Chamber formation, ruled on the RT France case and proposed a robust and convincing test. Despite rejecting the applicant’s claims, the GC undertook an in-depth review of the proportionality of the contested measure.

It is important to note that the factual background of RT France is quite exceptional, as the case concerns the legality of an unprecedented sanction, a media ban imposed in March 2022 against certain Russian media outlets – allegedly engaged in propaganda and disinformation campaigns in the context of the ongoing war in Ukraine.[79] In the history of EU sanctions, it was the first time that the Council decided to impose broadcasting restrictions against media outlets.[80] So, when RT France lodged a complaint with the GC, the Luxembourg judges were confronted with new legal questions.[81] However, for the purpose of this analysis, the focus is limited to the role of the principle of proportionality and the judicial methodology used by the GC to review the legality of the contested measure. 

RT France represents the first case in which the GC proposed a four-step approach to assess the alleged interference of EU sanctions with fundamental rights. More precisely, the Court establishes that the contested restriction on free speech must satisfy fourconditions.[82] First, the restriction must be provided for by law, in the sense that it must have a clear legal basis. Second, it must respect the essence of freedom of expression. Third, it must effectively meet an objective of general interest, recognised as such by the Union. Fourth, it must be proportionate’ (stricto sensu).[83]

The first condition (i.e., ‘Step 1’ of the proportionality test) enshrines the principles of legality, legal certainty and foreseeability.[84]And the Court deems it to be satisfied.

The second condition (i.e., ‘Step 2’) is perhaps the main novelty proposed in the ruling.[85] Respecting the essence of fundamental rights is presented as an autonomous step in the proportionality test, which anticipates any balancing of competing interests. As suggested by some legal scholars, ‘the concept of the essence of a fundamental right implies that every fundamental right has a ‘hard nucleus’ that guarantees to each and every individual a sphere of liberty that must always remain free from interference’.[86] That hard nucleus is and should remain absolute and not be subject to any interference – or any balancing.[87] If it is established that the essence of a fundamental right has been compromised, the restriction in question would automatically be incompatible with EU law – without the need for any further assessment. Accordingly, the GC decides to evaluate the essence of the applicant’s rights as a preliminaryquestion. 

The Court establishes that the sanctions imposed on RT France respect the essence of free speech,[88] because the media ban imposed on the applicant is intended and designed to be a temporary and reversible restriction.[89] The GC points out that the maintenance of a media ban on RT France is conditional on two cumulative criteria (i.e., first, until the aggression against Ukraine is put to an end and, second, until the Russian Federation, and its associated media outlets, cease to conduct propaganda actions against the Union and its Member States) as set forth in the preamble of the Council Decision.[90] In the event that one of the cumulative criteria is no longer satisfied, there would be no further need to maintain the measures at issue.[91] In this way, the Court interprets the Preamble of the contested Decision as providing fundamental limits on the interference with the applicant's fundamental rights. By pointing to de-listing criteria, the Court rejects RT France’s argument that the restrictive measures are intended to apply ‘without a time limit defined in advance by the Council’.[92]

The Luxembourg judges have previously highlighted that EU sanctions are intended to be temporary interferences with fundamental rights;[93] however, in RT France, the GC points out, for the first time, that the contested Decision contains an explicit guarantee to ensure that the media ban remains a temporary restriction. In other words, the Council has expressly incorporated de-listing criteria to guarantee that sanctions remain reversible and proportionate restrictions.

In addition, the media ban is considered to respect the essence of free speech because it does not prevent RT France from conducting every activity inherent in freedom of information and expression. In fact, the applicant is still able to carry out its activities outside the European Union, as well as other broadcasting activities within the Union (such as research and interviews).[94]

Then, the Court moves on to the third condition (i.e., ‘Step 3’), namely the requirement that the contested restriction must pursue an objective of general interest, recognised as such by the European Union. Interestingly, the GC illustrates the existence of an internal as well as an external dimension of the general interest pursued by the Union when imposing sanctions against certain Russian media outlets. On the one hand, it acknowledges that the Council can invoke the protection of ‘the Union’s public order and [internal] security’ from the threat of a systematic propaganda campaign put in place by the Russian Federation, channelled through media outlets under the permanent direct or indirect control of its leadership.[95] In this way, Russian propaganda and disinformation campaigns are perceived as a threat inside the Union, since they aim to destabilize its Member States and neighbouring countries.[96]On the other hand, the GC also recognizes that the restrictive measures at issue ‘are consistent with the objective [..] of preserving peace, preventing conflicts and strengthening international [external] security’.[97] It rules that the Council is entitled to exert maximum pressure on the Russian authorities to bring the military aggression against Ukraine to an end. 

Ultimately, the fourth and last condition of the proportionality test proposed in RT France is dedicated to ‘the proportionate nature of the restrictive measures at issue’ (i.e., ‘Step 4’). Here, the GC provides a lengthy and detailed explanation of the evidence presented against the applicant. It begins with emphasising that the applicant is entirely funded by the budget of the Russian Federation, and does not constitute an independent media outlet. Then, the GC analyses a long list of concrete examples of propaganda as broadcast by RT France in February 2022, and points to the context in which these contents were broadcast, namely that of an ongoing war.[98] The Court reaches the conclusion that the Council was entitled to target RT France according to a ‘sufficiently concrete, precise and consistent body of evidence’.[99] Subsequently, when assessing the suitability and necessity of the restrictive measures at stake, the GC recognises the broad discretion which the Council enjoys in pursuing objectives of general interest.[100] It finds the media ban to be ‘appropriate for achieving the objective of exerting maximum pressure on the Russian authorities’ and induce them to bring an end to the war in Ukraine.[101] Furthermore, the Court stresses the necessity of the media ban, emphasising the ‘extraordinary context’ and the ‘extreme urgency’ determined by the intensified military conflict in Ukraine (i.e., the necessity test). Lastly, when weighing up the interests (i.e., proportionality stricto sensu test), the Court confirms that the disadvantages caused by the temporary prohibition on broadcasting are not disproportionate to the objectives pursued – in light of the extraordinary context of the present case.[102]

In conducting this innovative four-step test, the GC provides a detailed analysis of the media ban, assessing the validity of the imposed restrictions against a range of legal and factual considerations. It appears that Article 52(1) of the EU Charter has inspired a more structured review. Notwithstanding the ongoing war and the sensitive geopolitical interests at stake, the reasoning presented in RT France appears to be well-founded (perhaps redundant, but ultimately convincing). 

3.2.4. The proportionality review after RT France

Given the significant contribution of RT France to the ‘full review’ of restrictive measures in the light of fundamental rights, one might wonder whether it marks a turning point in the broader discourse on the proportionate nature of sanctions. At the moment, it remains to be seen how far this precedent will be followed and consolidated in the future, but it is certainly one to reflect upon.[103]

On the one hand, RT France represents a potentially isolated decision which aimed at justifying the legality of an extraordinary interference against certain Russian media outlets in an exceptional geopolitical context.[104] Consequently, the unique nature of the restriction in question is likely to make RT France a sui generis decision – which does not set a judicial methodology for the review of restrictive measures as a whole. On the other hand, RT France represents an incredible source of inspiration for the academic debate on sanctions. By departing from earlier case law, it reshapes the proportionality test and places unprecedented weight on the ‘essence requirement’ of fundamental rights.

The unprecedented focus on the obligation to respect the ‘hard nucleus’ of fundamental rights offers significant constraints on the design of EU sanctions. In fact, the judgement underscores the need for a pre-defined timeline to prevent restrictions from becoming perpetual, irreversible, and ultimately disproportionate. In this way, RT France operationalises the principle of proportionality by requiring the targeting process to be accompanied by de-listing guarantees.

In RT France, the GC finds that, since the Council has established both listing and de-listing criteria, the contested media ban contains explicit guarantees against the imposition of perpetual and irreversible restrictions. If extended to other forms of restrictive measures (such as asset freezing measures), this reasoning could introduce innovative safeguards against long-lasting or punitive restrictions. At present, however, EU sanctions regimes generally lack lifting grounds. In practice, this may lead to prolonged measures that amount to lifelong interferences with fundamental rights. Therefore, the RT France ruling sheds light on a shortcoming of today’s targeting practices: the absence of clear de-listing guarantees. And, in the author’s view, RT France calls for a significant reform of EU sanctions, urging the Council to incorporate explicit lifting grounds in order to safeguard proportionality and fundamental rights.

4.   Conclusions

This paper has explored the proportionality review of sanctions before the CJEU, shedding light on the varying degrees of judicial scrutiny depending on the illegality plea raised by the applicants. The Court’s review ranges from a limited assessment of policy measures to a more rigorous scrutiny of individual measures (and alleged interferences with fundamental rights).

With regard to the proportionality of policy measures, such as the legality of designation criteria, the CJEU applies a ‘manifestly inappropriate test’. This test entails a light-touch scrutiny, whereby the Court refrains from intervening too strongly in the political decisions adopted by the Council, with the unanimity of 27 Member States. Applicants are rarely successful in contesting the proportionality of these policy decisions, as the Court tends to confirm the rational connection between the restrictions imposed and the (CFSP) objectives pursued by the Council.

By contrast, when the legality of individual measures is at stake, the CJEU exercises a more intensive (and structured) proportionality review. Since Kadi, the Court has consistently affirmed its responsibility to ensure a ‘full review’ of EU sanctions in the light of fundamental rights. This approach has been gradually structured into a four-step test, most recently articulated in RT France. Although this test reaffirms the Court’s primary role as a guardian of fundamental rights, successful challenges remain rare. The Council appears to have internalised the ‘Kadi lesson’, embedding the necessary legal safeguards and procedural guarantees within the design of designations. As a result, applicants rarely manage to prove that their fundamental rights have been disproportionately infringed. The success of Mr. Kadi remains an isolated example. 

In conclusion, despite the rarity of successful proportionality challenges, this paper has demonstrated that the CJEU has gradually refined its judicial methodology for reviewing the legality of sanctions in light of Article 52(1) of the Charter, when fundamental rights are at stake. The RT France judgment, in particular, marks a significant step in this evolution, as it articulates a structured test that operationalises the general principle of proportionality, thereby transforming it into a meaningful constraint for the design of EU sanctions.