Jacques Baud, a retired Swiss intelligence official and resident of Brussels, is one of the individuals who has been sanctioned by the EU for his speech acts. His listing falls under the EU sanctions regime that targets ‘Russia’s destabilising activities’, which includes what the EU perceives as FIMI and the spreading of pro-Russian propaganda and disinformation. The Council of the European Union has provided the following reasoning for his listing: “Jacques Baud, a former Swiss army colonel and strategic analyst, is a regular guest on pro-Russian television and radio programmes. He acts as a mouthpiece for pro-Russian propaganda and makes conspiracy theories, for example accusing Ukraine of orchestrating its own invasion in order to join NATO.” He has been sanctioned although he has no alleged ties to the Russian government. Mr Baud responded to his listing by explaining that he is careful to never rely on Russian sources and only quotes Ukrainian or European sources, and he denies “accusing Ukraine of orchestrating its own invasion in order to join NATO”. While he does not speak on Russian owned media outlets, he appears as a regular guest on channels that are critical of the EU’s policy in Ukraine. It seems that the EU has sanctioned a private individual who offers a personal analysis of events that is critical of the EU’s policies.
Mr Baud is one but a number of European nationals and residents who have been sanctioned for their speech acts. Another example is Hüseyin Doğru, a German national and resident in Berlin who has been sanctioned for his media outlet RED Media, which has broadcasted information on pro-Palestinian protests, referred to as ‘anti-Israeli’ riots in the statement of reasons, in Germany. In doing so, he has been accused of using his media outlet to “systematically spread false information on politically controversial subjects with the intent of creating ethnic, political and religious discord amongst its predominantly German target audience, including by disseminating the narratives of radical Islamic terrorist groups such as Hamas”, which according to the EU benefit Russia’s goal of undermining the Union. Nathalie Yamb is another illustration. She is a Swiss national who currently resides in Africa and who has a YouTube channel that is very critical of European, especially French, neocolonial practices in Africa. She has been sanctioned for the following reason: “Nathalie Yamb is a social media influencer. Since the Sochi summit she attended in 2019, Nathalie Yamb has been an outspoken supporter of Russia, adopting Moscow’s language and targeting France and the West in particular, with a view to ousting them from the African continent. She has specific ties with AFRIC, an organisation linked to Russian private military companies.”
Former Attorney General Sharpston has described EU restrictive measures as the suspension of normal economic life, and they have certainly been experienced in this way by the above-mentioned sanctioned individuals, especially as their economic and personal life is tied to Europe. Mr Baud , who resides in Brussels, is unable to access his bank accounts, has been given a €500 monthly allowance to live on (which, considering Belgian’s standards of living, is quite low), and cannot travel throughout the EU. He could receive permission to travel to his home country, Switzerland, but this would mean he could not return to his place of residence. Mr Doğru resides in Berlin and has small children; he as well has been granted a monthly allowance of €500, far too little to keep up with family expenses in Germany’s capital. Although Ms Yamb lives outside of the EU’s jurisdiction, she has been unable to access her Swiss bank accounts and to travel because Swiss banks and African airlines have complied with the sanctions even if legally they are not required to (this phenomenon, known as ‘overcompliance’, is common when it comes to sanctions). In its recent Gagarina v Council ruling, the General Court accepted that the Council can restrict free speech and noted that the Gagarina was at liberty to pursue her artistic career and generate income outside of the EU (as Finelli notes here, the Court nonetheless annulled Gagarina’s listing due to a lack of evidence). It remains to be seen how the Court will assess the cases of EU nationals and residents, such as Mr Doğru and Mr Baud, or where the individual’s personal life is significantly affected, as is the case of Ms Yamb.
Restrictive measures are intended to be preventive foreign policy tools. The purpose of freezing an individual’s assets is to prevent them from using their resources to engage in or support activities such as terrorist attacks or armed conflict. It is hard to see how barring an individual from accessing their resources in response to their speech acts actually prevents them from engaging in this activity. Instead, it has prevented them from carrying out their personal, family lives, all because they have expressed politically unwanted opinions. As Wegener notes, that these sanctions are “supposed to be a legally acceptable, proportionate Union response to unwelcome expressions of opinion cannot be maintained with a clear conscience”.
Even if these sanctions did effectively prevent the individuals from carrying out their activities, should they be permitted? The listings discussed here suggest that under the sanctions regime any criticism of the EU or its member states ‘destabilizes’ the EU and therefore profits Russia, even if the content of their speech is not on Russia’s war of aggression against Ukraine. This is possible because the scope of the sanctions is very broad due to the vague listing criteria; individuals can be sanctioned for “planning, directing, direct or indirect participation in, support for or other facilitation of the use of coordinated information manipulation and interference”. A report by Ninon Colneric and Alina Miron presented to the European Parliament, which concluded that Council Decision (CFSP) 2024/2643 is contrary to EU law and violates the freedom of expression, explains this is problematic because: “Vague laws do not allow the private person submitted to them to determine what is required of him/her and adapt his/her conduct accordingly. They are also criticized because they tend to chill far too much truthful, protected speech.”
Mr Baud, Mr Doğru and Ms Yamb have the opportunity to appeal their listing before the General Court of the EU, but these proceedings take time and are costly. While it is certainly important that a review mechanism is provided by the EU, it is far from perfect, especially when we consider the impact that sanctions have on an individual. Because sanctions are a foreign policy tool, the Court accepts that the Council has ‘broad discretion’ when it comes to listing individuals. Its review is generally limited to verifying if there is a ‘sufficiently solid factual basis’ to justify the listing and it accepts that individuals’ human rights may be restricted in the interests pursued by the Council. To date, the Court has always accepted that the Council is pursuing a legitimate aim, and that the sanctions are a necessary and proportionate restriction to the enjoyment of human rights. In the RT France v Council case, the General Court accepted that the ban against RT France was permitted under Article 11 EUCFR and therefore did not unlawfully restrict the freedom of expression. This was heavily criticized by Ó Fathaigh and Voorhoof, who find that the “judgment arguably represents a deeply-problematic application of European and international free expression principle”. In their view, the General Court misapplied ECtHR case-law on the freedom of expression, in particular it neglected the fact that no procedural safeguards (such as a review by an independent, non-political and specialist body) were followed when RT France was banned. The ban was issued by a political body, the Council of the EU, without a prior Court review. Another discrepancy is that the Court accepted that a blanket ban on RT France was proportionate, whereas the ECtHR has found that ‘wholesale blocking’ is often an extreme, and hence not a least restrictive, measure. In essence, whereas the General Court presumably drew from ECtHR case-law, its own review is demonstrably much narrower and more permissive, setting a dangerous precedent in EU case-law.
As mentioned, the General Court’s assessment of EU restrictive measures is oftentimes limited to ensuring that the Council has provided sufficient evidence to justify the reasons given for the listing. It has previously ordered that individuals be de-listed because the Council has not substantiated its claims, but this has not prevented the same individuals from being relisted under different criteria (note that the Court restricted relisting under the same criteria in Tokareva v Council). Overtime, the Council seems to have learned that as the Court limits its assessment to the veracity of the sanctioning criteria, which are designed by the Council itself, it is free to sanction who it desires as long as it is able to defend the statement of reasons (see further van Elsuwege and Finelli). For example, in April 2024 Russian oligarchs Mikhail Fridman and Petr Aven won their appeal against the EU’s restrictive measures because the Council did not provide evidence that they supported or benefitted from Russia’s aggression against Ukraine, which was the reason for their listing. Nonetheless, they remained sanctioned as ‘leading businesspersons operating in Russia’. They were thus listed for their economic activity, regardless of its ties to the Russian war effort.
As this blogpost series on EU’s sanctions against FIMI, media outlets and ‘content-based’ designations has discussed, it is clear how far reaching the Council’s power can go when it is left unchecked. It remains to be seen how the General Court will assess these designations. The EU claims that its policies, such as sanctions, in Ukraine aim to defend democracy in Europe. Sanctions against free speech will create a chilling effect, deter individuals from expressing their opinions and ultimately shut down debate in democratic societies. In pursuit of this objective, it is important the Council of the EU does not unwittingly undermine fundamental democratic values, such as the freedom of expression. If the Court accepts the Council can designate individuals solely for their speech acts, this will pose a genuine threat to the exercise of free speech.
Posted by Alexandra Hofer (Utrecht University)
This post is the last one in a series entitled ‘The EU’s restrictive measures against Russian media outlets and ‘foreign information manipulation and interference’: Issues of effectiveness, legality and principle’. The Introduction and other pieces can be found by clicking on this link.