This essay examines the evolution of the case-law with respect to the legality of restrictive measures aimed at strengthening the rule of law in Tunisia, Egypt and Ukraine by freezing the assets of persons who are subject to investigations within their national legal order for their involvement in crimes related to the misappropriation of public funds. The adoption of these CFSP acts, which are based on investigations carried out by authorities of third countries, is problematic for the EU’s credibility since the mentioned States present systemic deficiencies as far as the rule of law is concerned as a result, the right to effective judicial protection of the addresses of these restrictive measures could be breached. The role of the Court of Justice is fundamental to safeguard the credibility of the Union and to ensure the coherence with the case-law on the rule of crisis in the EU. The essay argues that between 2013 and 2017 the General Court and the Court of Justice have adopted a conservative approach with regard to the legality of the restrictive measures under examination. This trend is also present in two recent judgements in cases Ezz and Mubarak rendered by the General Court in 2018. By contrast, in the most recent case-law concerning the Ukrainian restrictive measures, and in particular, in Azarov (2018) on the one hand and in Arbuzov, Klymenko and Janukovych (2019) on the other, the Court of Justice and the General Court have respectively exercised a more intense judicial control on restrictive measures and they have annulled them. Indeed, the Council has not examined whether the right to judicial protection had been actually respected by the Ukrainian authorities. Finally, this essay critically assesses both the measures adopted by the Council to implement the judgement in Azarov and the changes of the normative framework concerning restrictive measures related to the situation of Egypt and Tunisia.
L’evoluzione del controllo giurisdizionale sugli atti PESC intesi a consolidare la rule of law: il caso delle misure restrittive sullo sviamento di fondi pubblici
Sara Poli
2019-01-01
Abstract
This essay examines the evolution of the case-law with respect to the legality of restrictive measures aimed at strengthening the rule of law in Tunisia, Egypt and Ukraine by freezing the assets of persons who are subject to investigations within their national legal order for their involvement in crimes related to the misappropriation of public funds. The adoption of these CFSP acts, which are based on investigations carried out by authorities of third countries, is problematic for the EU’s credibility since the mentioned States present systemic deficiencies as far as the rule of law is concerned as a result, the right to effective judicial protection of the addresses of these restrictive measures could be breached. The role of the Court of Justice is fundamental to safeguard the credibility of the Union and to ensure the coherence with the case-law on the rule of crisis in the EU. The essay argues that between 2013 and 2017 the General Court and the Court of Justice have adopted a conservative approach with regard to the legality of the restrictive measures under examination. This trend is also present in two recent judgements in cases Ezz and Mubarak rendered by the General Court in 2018. By contrast, in the most recent case-law concerning the Ukrainian restrictive measures, and in particular, in Azarov (2018) on the one hand and in Arbuzov, Klymenko and Janukovych (2019) on the other, the Court of Justice and the General Court have respectively exercised a more intense judicial control on restrictive measures and they have annulled them. Indeed, the Council has not examined whether the right to judicial protection had been actually respected by the Ukrainian authorities. Finally, this essay critically assesses both the measures adopted by the Council to implement the judgement in Azarov and the changes of the normative framework concerning restrictive measures related to the situation of Egypt and Tunisia.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
