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Let's talk about sanctions in France

Updated: Mar 19, 2021

French sanctions fall into three categories:

  • Sanctions derived from the United Nations Security Council Resolutions

  • European Union autonomous restrictive measures, and

  • Unilateral sanctions

Before discussing sanctions in France in detail, it is important to ensure that we are familiar with two topics: first, the Common Foreign and Security Policy (“CFSP”) of the European Union, and then the impact of EU CFSP Decisions on the member states.

  1. Common Foreign and Security Policy Based on the Treaty on the European Union (TEU) as amended, European Union has its own capacity as an independent institution to act in broad matters related to the foreign policy of the Union. Led by the High Representative for Common Foreign and Security Policy, EU’s competence in area of CFSP “cover[s] all areas of foreign policy and all questions relating to the Union's security”. In other words, as the title suggests, CFSP is the common position of the European Union vis-à-vis non-EU actors in the international scene and the Hight Representative is acting like the Foreign ministry (Secretary of State) of the EU.

  2. EU CFSP Decisions and their impact on the member states The interaction between the EU and the member states is a complex topic which is beyond the scope of this article, yet in short, when it comes to CFSP, EU holds considerable powers. As stated in Chapter II of the Title V of the TEU, it is within the authority of the Council to adopt decisions to “define the approach of the Union to a particular matter of a geographical or thematic nature” (in the international scene). The treaty further states that the “member states shall ensure that their national policies conform to the Union positions.” It means that once the Council takes a decision related to CFSP of the Union, then the member states (including France) has no choice but to act in line with the Council’s decision.

CFSP and Sanctions

As stated by the European Commission on its website, sanctions (or ‘restrictive measures’ as it is usually called in the EU) are an essential tool in the EU’s CFSP. Therefore, sanctions-related decisions of the EU are binding for all member states as it pertains to CFSP. The division of powers between the EU and the member states is to some extent similar to the division of powers between the states and the federal government in the United States. The states gave up the powers enumerated in the Constitution in favor of the federal government. The latter’s decisions, as long as is within it enumerated powers, are binding for both the federal government and the states.

Three Sources of Sanctions

Now we turn to the main topic of this article, sanctions in France. Sanctions in France comes from three sources: the United Nations, the European Union, and France itself.

Sanctions derived from the United Nations Security Council Resolutions

Article 220(1) of the Functioning Treaty of the European Union states that “[t]he Union shall establish all appropriate forms of cooperation with the organs of the United Nations […].” Considering this article and the fact that almost all UNSC sanctions falls under the scope of CFSP, EU (and not each member state separately) implements the UNSC sanctions in EU. Once there are sanction measures adopted by the UNSC, the Council adopts relevant decisions and regulations to implement them throughout the Union.

In some cases in addition to the Council Decision and Regulations, member states should implement the sanctions measures locally in order to give effect to some sanctions in their respective jurisdictions (e.g. travel bans). In general, if the sanction measure restricts an action over which the Union has jurisdiction, then no further local legislative/executive action is required. On the other hand, if the act subjected to sanctions falls within the powers of the member states, then the member states need to take actions separately to implement the sanctions measure. An exception to this rule is arms embargoes. Even though EU has jurisdictions over arm embargoes, they are handled separately by each member state. For more information on the arms embargoes see Article 346 (1)(b) of the TFEU.

In the case of financial sanctions where the EU has the power to implement sanctions directly, it usually takes few days for the EU to implement the UNSCR restrictions. To address this gap, France recently modified Article L562-3-1 of France Monetary and Finance code to make UNSC asset freezing sanctions (designations) applicable in France with no delay.

European Union restrictive measures

France is a member state of the EU and it is therefore committed to conform with CFSP decisions of the Council. In areas where the member states ceded their power to the EU, EU actions are binding and directly applicable. Furthermore, the EU legislations takes precedence over the conflicting local legislation. Therefore, once a CFSP decision is made by the Council and is further implemented through legislation in line with article 215 of TFEU, such sanctions are in force in all EU member states. There is no need for the French government to take supplementary actions in order to implement such EU restrictive measures. Yet, bear in mind that the enforcement of those restrictive measures is left with the member states. So, even though a restriction may be in place in a member state by the virtue of the EU regulations, it is possible that the breach of such restriction does not lead to any enforcement by a member state.

Unilateral sanctions

Now that we talked about the UN and the EU sanctions, we turn to the France’s unilateral sanctions. Monetary and Financial Code of France in Chapter II of the Title 6 of the fifth book of the law lays down the authority for the asset freezing. Article L562-1 of the law provides the legal definitions of the terms used in the chapter, followed by Article L562-2 which grants the economy and the interior ministers (jointly) the authority to freeze the assets of those who commit, attempt to commit, finance or facilitate a terrorist act (as defined in Article L562-1). Anyone who solicits or participates in such conducts could also be targeted. The second paragraph of the article extends the designation authority to those owned, controlled or acting on behalf of persons mentioned in the first paragraph of the article. Here are some examples of designations under this article: ECOT2031914A, ECOT2035523A, and ECOT2036596A.

The law in Article L562-3 gives the asset freezing power to the minister of the economy to freeze the assets of those who commit, attempt to commit, finance or facilitate any prohibited or sanctioned activity by the UNSC or by the EU. Anyone who solicits or participates in such activities could also be targeted.

The latter authority for asset freezing in France is what many in the U.S. calls derivative sanctions like the authority for designation stated in section 1(a)(ii)(D) of E.O. 13692. (“[…] (D) to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of [...] a person whose property and interests in property are blocked pursuant to this order […].”)

An example where the French authorities blocked the assets of targets under Article L562-2 was the designation of several individuals and entities which were part of Electronics Katrangi Trading network which, in turn, supported Syria’s Scientific Studies and Research Center (“SSRC”). SSRC had been designated by the EU Council on December 1, 2011 (regulation (EU) No 1244/2011). Therefore, those individuals and companies were subject to asset freezing measures for helping SSRC which was an EU listed entity.

An interesting point about the French unilateral sanctions is that any designation under either Article L562-1 or L562-2 is valid for six months and after that it will be expired unless extended by the relevant authorities. This feature of the French unilateral sanction is less intrusive to the rights of targeted individuals and entities and it requires the government to ensure that the targets are still engaged in the activity for which they were initially designated. The very same feature, however, may nullify the effectiveness of sanctions in case the extension of a given designation does not occur prior to its expiration. (Imagine a listed person showing up to get her/his funds from a bank in the gap between the expiration of the prior designation and the new designation coming into effect.)

To conclude, I list some useful links so you can go to the sources if you want.

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