'Sins of the Past' - Protection of Fundamental Rights in Individual Sanctions in the Historical, Institutional, and Judicial CFSP Context

Abstract: Since 24 February 2022, the European Union has faced a conventional war on its doorstep and an increase in geopolitical tension with the East. This has required the Council to act quickly and forcefully within its competence in the area of Common Foreign and Security Policy. To counteract the adverse geopolitical actions the Council has issued sanctions packages which have never been utilized before so extensively. The most common type of measure is individual sanctions which are intended to increase the cost of the target to maintain their activity. Effectively, sanctions are intended to weaponize fundamental rights by withdrawing the benefits from certain individuals. Considering the great impact these measures have on fundamental rights for targets and citizens of target countries it is relevant to study whether the Union effectively protects the fundamental rights even in its response to wrongful international actions. The purpose of this thesis is to study three layers within the area of CFSP: 1) Historical, 2) institutional, and 3) judicial. By using a holistic method based on these three areas the development of fundamental rights within the CFSP and especially individual sanctions can be observed both from a legal and contextual perspective. The historical aspect serves the purpose to study if Member States have displayed interest in developing a common foreign policy within the Union and how Member States’ relationship to CFSP has impacted the development both institutionally and judicially. The institutional aspect will try to assess the inner workings of the CFSP, and which institutions therein are responsible for drafting individual sanctions and which are ensuring the protection of fundamental rights. Lastly, the judicial perspective serves to study the role of the Court and its current ability to ensure the protection of fundamental rights in the area of CFSP and individual sanctions. Conclusively, by looking at these three aspects it becomes apparent that the area of CFSP still struggles with the historical skepticism from Member States which won’t allow the area to develop at the pace it is currently acting in. These historical burdens threaten the future development of fundamental rights in individual sanctions. The past hesitance to empower the Union in this specific area has undermined its institutional and legal efforts, leading to a disadvantageous situation where the protection of fundamental rights is compromised. This discrepancy in the development of CFSP is affecting the courts’ ability to effectively protect fundamental rights. Unfortunately, the Court has also taken a cautious stance in its assessments of individual sanctions due to its political sensitivity. The role of the Court is to maintain the power balance within the Union and to ensure that the signed treaties are being enforced effectively. Under the current standing of the judicial framework, the Court is not able to fulfill this role, placing greater demands on the institutions.