The new sanctions against Russia bring the goal of European unity closer but highlight the inherent limits of the EU treaties that must be overcome. The new sanctions package, in fact, extends the EU’s powers and brings the goal of real EU political autonomy even closer. The analysis by Andrea Monti, Adjunct Professor of Digital Law in the Master’s Degree Course in Digital Marketing at the University of Chieti-Pescara – Originally published Italian on Formiche.net
EU Regulation 879/22 establishes the sixth package of sanctions that the Member States must apply against Russia. Among the various measures adopted by the Council, one extends the blockade to the dissemination of information by other Russian press agencies (Rossiya RTR/RTR Planeta, Rossiya 24/Russia 24, TV Centre International). It adds a non-jurisdictional procedure for selecting the recipients of the sanction. Specifically, while entering into force immediately, the blockade’s effectiveness is postponed until 25 June 2022. In fact, the Regulation provides that blocking Russian information sources will occur not indiscriminately but based on an evaluation procedure managed by the Council itself. Lastly, the Regulation requires states to adopt criminal laws that include the accessory penalty of confiscation against the person who has violated the obligations to apply sanctions.
A decree-law on the way?
Although EU regulations are immediately applicable in domestic law, in criminal matters, enacting a law or a decree-law is still required to make the EU dictum effective. Strictly speaking, therefore, it is not a matter of ‘transposition’ or ‘implementation’, but whatever name we want to give to the rose, the fact is that the Italian institutions will necessarily have to legislate on the point.
Excluding recourse to an ordinary law (whose approval times would be incompatible with those dictated by the Rules of Procedure), there only remains the option of a decree law. Even in this case, however, the path is undoubtedly arduous.
A hypothesis on the content of the criminal anti-blocking avoidance act
Discouraging the circumvention of sanctions by citizens and businesses suggests to include the rules within the scope of offences against the personality of the State. The appropriate criminal code section would be that where articles 248 et seq. lies (supplying the enemy with commissions, participation in loans to the enemy, trading with the enemy). In view of the absence of a formally declared state of war, it would be necessary to construct rules that are also applicable in times of ‘peace’. Moreover, since they are essentially crimes that affect commercial and industrial operators, they should be included among the offences that, under Legislative Decree 231/01, an entity has a legal obligation to prevent.
The offences whose creation is imposed by the Sixth Sanctions Package should, then, be prosecutable ex officio. In this way, it would be sufficient for the authority or the law enforcement to have knowledge of the commission of the offence to initiate criminal investigations.
The penalties should be sufficiently high to justify, together with the legal nature of the offences, the widest recourse to investigative tools such as wiretapping, computer trojans, pre-trial detention and preventive seizure. In this last regard, in the specific case of violations of the ‘blacking out’ obligations of Russian news agencies imposed on telecommunication operators and broadcasters, web blocking should be allowed as a principal power and not as an exception to the public prosecutor. Furthermore, as required by the EU Regulations, the rule should provide the accessory penalty of revocation of licences authorising the operation of electronic communication networks and services.
Finally, to allow maximum anticipation of judicial intervention, these offences should be constructed as ‘offences of presumed danger’. In this type of offence, the criminal violation would be committed without the need to wait for the specific sanction to be actually violated or circumvented.
The delicate relationship between the Member States and the EU on criminal justice, defence and security
Whatever the legal choice adopted by the Member States – and therefore by Italy – to meet the requirements of this Regulation, the unresolved problems arising from the incompleteness of the EU integration process are once again highlighted.
The contents of Regulation 879/22 reinforce the autonomy of the Community institution vis-à-vis the nation-states in delicate matters such as defence, security, and criminal justice. However, at the same time, they highlight the reaching of a legal limit that would be difficult to overcome or continue to lapse in handling the Russian-Ukrainian dossier.
Elaborating further on the analyses already made regarding the previous Regulation 320/22, blocking the dissemination of news by the press agencies Sputnik and Russia Today, it is possible to complete some broader considerations on the role of the EU Treaty.
With an exercise in legal-constitutional diplomacy (or rather, acrobatics), the Treaty has made the boundaries between individual members and the EU less certain, not only in defence and security but also in criminal law.
Under the first profile, on the one hand, the principle that defence is a power and a duty of a sovereign state toward its citizens remains (apparently) intact. However, Article 42 of the Treaty subtly creates a non sequitur. It connects the need for an approach similar to Article 5 NATO (and thus applied to individual members), the recognition of the Union’s right to have an autonomous military operational capacity, and even the existence of ‘Community borders’ as if the United States of Europe were already established.
A similar discourse applies to criminal law, which, as the handling of the Ukrainian dossier has shown, is a fundamental instrument to guarantee the effectiveness of the sanctioning measures decided in Brussels.
Formally, the Treaty allows the Union to define policies for harmonising national criminal laws and to impose on its members the adoption of criminal legislation to protect the so-called ‘Community interest’. At the same time, as it has been observed and not as of today, the Union’s activity is progressively translated
into Community obligations of criminalisation and, as a result of the interposed parameter of Article 117 of the Constitution, into constitutional obligations of criminal protection. The strengthening of the instruments of harmonisation of national criminal legislation is by no means accidental. Still, it reflects the progressive strengthening of the democratic basis of the European Union’s legality, which through the strengthening of the co-decision procedure, before Lisbon, and in the new ordinary legislative procedure, after Lisbon, recognises the European Parliament’s effective role as a legislator. Nonetheless, suppose a policy of dialogue and ‘harmonisation’ is to be welcomed at the local-national level. In that case, it cannot be translated into a true and proper ‘standardisation’ with the recognition of a direct penal competence at the head of the European institutions: on pain of the nullification of the substantial-constitutional guarantee instance underlying the corollary of the State’s reservation of the law and the consequent exclusion of the vigilant control of the Constitutional Court.
So, to return to the point represented by the criminal sanctions invoked by Regulation 879/22, one would have to ask whether how the sanctions were enacted, their prerequisites and their textual wording crossed the boundary that distinguishes ‘harmonisation’ from ‘standardisation’.
Conclusions
Responding one way or thAnswering the issues highlighted is not just an academic question but a key element in effectively implementing the objectives set by the Council or, on the contrary, thwarting them. The adoption of sanctions against Russia by the EU instead of individual Member States has, in fact, a political significance that goes beyond the specific effectiveness of the measures taken.
Abandoning the caution that at other times has characterised the Community ‘swerves’ towards an autonomous subjectivity concerning the members, with the Ukrainian dossier, the Union has generated a vigorous impulse to the process of acquiring superiorem non-recognoscens sovereignty.
This drive, however, risks being weakened by the objective disconnect between the (also) de facto-acquired normative power and the inseparable link between the system of rights and the social group that expresses them.
In other words, without an authentic and shared European culture, it remains highly challenging to give the EU legislative and political power so strong as to overcome the system of ‘counter-limits’ where the Member States’ constitutional courts play the role of guardian of national interests.