Responsibility of Targeted Actors in the Context of Restrictive Measures - The Case of Belaeronavigatsia

Abstract

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In the context of the Common Foreign and Security Policy (CFSP), the European Union may adopt restrictive measures, also known as sanctions, against natural or legal persons and groups or non-state entities. Such measures are one instrument – among many others – to achieve certain policy goals, including the protection of the Union’s values and the advancement of fundamental rights, democracy, and the rule of law. There are sanctions of different kinds to coerce, constrain, or signal a targeted actor, and they are chosen and combined with a view to implement the most effective strategy. Belaeronavigatsia, a state-owned enterprise engaged in regulating airspace and providing air traffic assistance in Belarus, was deemed responsible for the repression of civil society and democratic opposition following its involvement in a flight diversion that ultimately led to the arrest of an opposition journalist and his companion. As a consequence, the Council froze its assets, a decision the enterprise contested by arguing that it could not be held ‘responsible’ for the referred act, and that the sanction was not in accordance with the principle of proportionality. The judgment in the case Belaeronavigatsia v. Council offers an overview of the main features of restrictive measures, reminds the interpretative criteria for undefined notions in Council’s decisions and then clarifies the terms ‘responsible for the repression’ with a special focus on the element of causation, and assesses the principle of proportionality in an area influenced by political, economic, and social motivations, such as the CFSP.