Issues of effectiveness, legality and principle
Introduction by Alexandra Hofer and Francesca Finelli
The European Union (EU) adopts restrictive measures, also known as sanctions, as a preventive, temporary, and non-punitive tool of its Common Foreign and Security Policy (CFSP) with the objective of bringing about a change in the policy or conduct of those targeted. The EU typically defines its restrictive measures as ‘preventive’, which justifies the fact that individuals and entities (usually located in third countries) can be sanctioned without prior hearing and notification as they are not being punished for criminal conduct.
Traditionally, EU sanctions focused on political elites, financial resources, and economic sectors. Yet since Russia’s full-scale invasion of Ukraine, the Union has progressively expanded its sanctions toolbox to address not only military and economic support for Russia, but also the informational environment surrounding the war. The EU was already designating journalists, TV presenters, and Russian individuals for their speech acts that allegedly supported Russia’s actions in Ukraine under Council Decision 2014/145, but since 2022 it has progressively taken further steps to restrict speech, and its dissemination in Europe, and has gradually sanctioned European nationals and residents for their alleged pro-Kremlin narratives. Most notably, when Russia invaded Ukraine in February 2022, the EU immediately banned the broadcasting of Russia media outlets on its territory in an effort to prevent the spread of Russia propaganda (Council Decision 2022/351). This unprecedented move raised concerns under the freedom of expression, and countries such as Norway and Switzerland refrained from aligning with the ban out of concern that it was disproportionate and ineffective. Moreover, in October 2024, the EU added a new sanctions regime targeting ‘Russian Destabilizing Activities’ (Council Decision 2024/2643), allowing the EU to target ‘Russian individuals, entities and bodies involved in or supporting measures that undermine democracy, the rule of law, stability and security both within the European Union (EU) and internationally.’ In the EU’s view, such individuals and entities would be involved in ‘foreign information manipulation and interference’ (FIMI). Journalists, political commentators and academics have been listed, some of whom are EU nationals and residents and for whom the consequences of living under sanctions are particularly dire.
While one may be sympathetic to the objectives pursued by the EU, are sanctions the most appropriate tool to use? What other policy tools are available to the EU to address misinformation and disinformation? To what extent are these sanctions compatible with EU law and the EU’s commitment to human rights, democracy, and the rule of law? This blog post series addresses each of these issues in turn. It begins with an introduction by Maarten Hillebrandt on the meaning of FIMI and the tools available to the EU in order to counter the phenomena; it is argued that restrictive measures are ‘sweeping and disproportionate’, with questionable effectiveness. Luigi Lonardo then focuses on the EU’s ban against Russian media outlets and how the General Court and, more recently, the Court of Justice have interpreted this ban. Next, Francesca Finelli turns to ‘content-based designations’ and questions whether the Council can target individuals for speech acts that support the Russian government. The series ends with a piece by Alexandra Hofer, who illustrates how individuals have been sanctioned despite having no formal link to the Russian government and for speech acts that are unrelated to the war in Ukraine. Alexandra argues that because the General Court allows the Council broad discretion to sanction who it desires, the latter is adopting increasingly broad and indeterminate designation criteria, and thus threatening freedom of expression.
Alexandra Hofer (assistant professor in public international law, Utrecht) and Francesca Finelli (assistant professor, Luxembourg)