The Adoption of ‘Targeted Sanctions’ and the Potential for Inter-institutional Litigation after Lisbon

Abstract

This article analyses the post-Lisbon legal framework for the adoption of restrictive measures against individuals or non-State entities – so-called ‘targeted sanctions’ or ‘smart sanctions’. It is argued that the procedural differences to adopt targeted sanctions in the framework of the EU’s counter-terrorism activities (Art. 75 TFEU) and with regard to the implementation of the Common Foreign and Security Policy (Art. 215 TFEU) increase the potential for inter-institutional litigation. This is particularly the case because the boundaries between the EU’s competences in the Area of Freedom, Security and Justice (AFSJ) and the Common Foreign and Security Policy (CFSP) are blurred. This is illustrated with the discussions surrounding the adoption of amendments to Regulation 881/2002 imposing restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban after the entry into force of the Treaty of Lisbon. The European Parliament contests the adoption of those amendments on the basis of Art. 215 (2) TFEU and argues that only Art. 75 TFEU is the appropriate legal basis given the counter-terrorism objective of the measure at stake. This article discusses the different options to find an appropriate solution for this inter-institutional competence battle and argues that the Court’s new possibilities to rule on the duty of consistency may help find a way out.