On December 7, 2020 the Council of the EU adopted a Decision and a Regulation establishing a EU Global Human Rights Sanctions Regime. Similar to the US Magnitsky Act, the framework will enable the EU to target individuals, entities and bodies responsible for, involved in or associated with serious human rights violations and abuses worldwide, regardless of where they occurred.

The new sanctions regime makes it possible to act against human rights violations through the freezing of funds and economic resources of sanctioned persons, entities and organizations. Additionally, it will be prohibited to make funds and economic resources available to those listed. Sanctioned individuals will also be prohibited from traveling to the EU.

The EU Global Human Rights Sanctions Regime covers a wide range of human rights violations including, genocide; crimes against humanity; torture and other cruel, inhuman or degrading treatment or punishment; slavery; extrajudicial, summary or arbitrary executions and killings; enforced disappearance of persons; as well as arbitrary arrests or detentions. It also covers other violations or abuses, if they are widespread, systematic or otherwise of serious concern when measured against the objectives of the EU common foreign and security policy. Such other violations or abuses include, trafficking in human beings, as well as abuses of human rights by migrant smugglers; sexual and gender-based violence; violations or abuses of freedom of peaceful assembly and of association; and violations or abuses of freedom of opinion and expression or religion or belief.Continue Reading EU adopts Magnitsky-style sanctions framework against human rights violations

On December 1, 2020 the Council of the EU adopted Conclusions calling on the Commission to launch an Action Plan by 2021 focusing on shaping global supply chains sustainably, promoting human rights, social and environmental due diligence standards and transparency. In April 2020, the Commission already announced its intention to develop a legislative proposal and published a study on due diligence requirements through the supply chain (see our previous client alert).

The Action Plan should include a call for a proposal from the Commission for an EU legal framework on sustainable corporate governance including cross-sector corporate due diligence obligations along global supply chains. An EU framework is likely to foresee binding due diligence obligations and may include a definition of the risk management processes companies will be required to follow to identify, prevent, mitigate and account for its adverse human and labor rights and environmental impacts. Companies will have to ensure that human rights are respected along their entire supply chain and will have to assume responsibility for more than just their direct contractual partners. Those affected by violations of companies’ human rights due diligence obligations will be able to enforce their rights in the courts of EU Member States. The German Council Presidency recently suggested that EU-wide legislation could also improve the quality of voluntary standards and certification on fair wages and universal access to social protection.Continue Reading Council of the EU calls for due diligence rules along global supply chains

On 9 November the German Presidency of the Council of the EU and representatives of the European Parliament reached a provisional political agreement on the review of the EU Dual-Use Regulation. The EU’s current export control framework for dual-use items, set out in Regulation (EC) No 428/2009, has been in place since 2009. The regulatory process to review this system and to adapt it to the changing technological, economic and political circumstances has been ongoing for several years.

The revision of the EU Dual-Use Regulation aims at further strengthening EU action on the non-proliferation of WMD, including their means of delivery; contributing to regional peace, security and stability; and helping ensure respect for human rights and international humanitarian law. Most notably, the EU institutions agreed to expand the scope of the framework to cover cyber-surveillance technology with the stated aim of preventing human rights violations and security threats linked to the potential misuse of such technology.

The agreement now needs to be endorsed by EU Member States’ ambassadors sitting on the Permanent Representatives Committee (Coreper). The European Parliament and the Council of the EU will then be called on to adopt the proposed Regulation at first reading.Continue Reading Provisional Agreement Reached on Review of EU Dual-Use Regulation, Including Rules on Cyber-Surveillance Items

On October 19 the European Commission and the High Representative of the EU for Foreign Affairs and Security Policy put forward a Joint Proposal for a Council Regulation concerning implementation of sanctions against serious human rights violations and abuses worldwide. The Joint Proposal for a Council Regulation together with the Council Decision proposed by High Representative Josep Borrell will, once adopted by the Council, establish the EU Global Human Rights Sanctions Regime.

Similar to the 2012 Magnitsky Act in the US, the new sanctions regime will provide the EU with greater flexibility to target those responsible for serious human rights violations and abuses, regardless of where they occur or who is responsible. European Commission President Ursula von der Leyen recently explained that there is a need for such framework in view of the EU’s recent difficulties to impose sanctions on Belarus, Turkey or Russia.

The drafts of the proposed sanctions regime are not yet available. However, the new framework is expected to provide for measures such as asset freezes and travel bans. On the latter, the Joint Proposal would also give, for the first time, the Commission oversight on the implementation of the travel bans. The new framework will not replace existing EU geographic sanctions regimes, some of which already address human rights violations and abuse. It should also be noted that some EU Member States, including Estonia, Latvia and Lithuania, have already adopted restrictive measures, such as travel bans, targeting individuals involved in human rights violations.Continue Reading European Commission proposes Magnitsky-style sanctions framework

On October 6, 2020, the U.S. Commerce Department’s Bureau of Industry and Security (“BIS”) promulgated a newly expanded licensing policy relating to human rights under the Export Administration Regulations (“EAR”).  We believe this is an area of increasing regulatory interest on the part of the U.S. government, including the U.S. Congress, and we would expect to see more developments like this in the near future.

On the one hand, the immediate practical impact of this new licensing policy may be limited.  First, it only informs the factors that the U.S. government must consider when deciding whether or not to issue a license under the EAR – it does not impose any new restrictions or licensing obligations in cases when a license previously was not required.  Second, even when the licensing process is triggered, we believe human rights considerations would have often been taken into account before this rule took effect, though perhaps less formally.  On the other hand, this policy change may be more significant for what it says about the direction in which U.S. export controls are heading, and it may come into play in significant ways in certain types of license applications.Continue Reading New Human Rights Licensing Policy under U.S. Export Controls – Convergence with the EU?

On September 17, 2020 the EU Court of Justice (“the Court”) rendered a judgement, by which it upheld the General Court’s decision dismissing an action brought by members of the Rosneft group. The judgement concerned the validity of some of the EU’s sanctions imposed on Russian oil companies in the context of the Ukraine

According to public statements of high-ranking representatives, the EU is considering whether to impose new economic sanctions against Turkey. The measures discussed include targeting certain Turkish industry sectors, such as the energy industry.

On November 11, 2019 the Council of the EU  adopted a sanctions framework set forth in Council Regulation 2019/1890 and Council Decision 2019/1894, and subsequently designated two executives of the Turkish oil company TPAO on February 27, 2020, in response to Turkish hydrocarbon drilling activities in what the EU views as Cypriot territorial waters. The sanctions that are currently in place consist of a travel ban to the EU, an asset freeze for persons and entities, as well as a prohibition to satisfy claims for their benefit. In addition, EU persons and entities are forbidden from making funds and economic resources available to those listed.Continue Reading EU Mulls New Economic Sanctions Against Turkey

Following a joint request from several EU national competent authorities (“NCAs”), the European Commission issued an opinion on asset freeze measures imposed on non-EU entities that are controlled by designated persons targeted by EU Council Regulation No 269/2014. The Regulation concerns restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (“the Regulation”). In its opinion, the Commission takes position on the interpretation of article 2 of the Regulation, which requires EU operators to freeze all funds and economic resources belonging to, owned, held or controlled by persons designated in Annex I to the Regulation. EU operators are also prohibited from making funds or economic resources available, directly or indirectly, to these designated persons. The guidance provided by the Commission is of particular relevance to credit and financial institutions that may be required to comply with EU asset freeze measures.

The NCAs asked the Commission a number of questions in connection with the interpretation of paragraph 63 of the EU Best Practices Guidance, which sets out the criteria to be taken into account when assessing whether a legal person or entity is controlled by another person or entity. The EU Best Practices are non-binding recommendations which aim to promote the uniform implementation of EU sanctions.Continue Reading European Commission Provides Guidance on the Scope of the Asset Freeze under the EU’s Ukraine-Related Sanctions

On 17 June, the European Commission released its White Paper “on levelling the playing field as regards foreign subsidies.” The White Paper is built on the conclusion that foreign subsidies can undermine competition and distort the EU internal market. It aims at introduction of new EU legislation to address the regulatory “gap” between the EU state aid rules applying to subsidies granted by the EU Member States to EU entities and the current lack of rules to redress the behavior of corporate actors in the EU whose market actions are unfairly facilitated by unregulated foreign subsidies. Beyond mergers in the EU involving foreign subsidized companies, the legislation would also address concerns about foreign subsidized actors in the context of EU public procurement and access to EU funding.

At the start of her mandate, Commission President Ursula von der Leyen had announced her wish to develop tools and policies to better tackle the distortive effects of foreign state ownership and subsidies in the internal market. The COVID-19 crisis encouraged a swift move on this initiative, as pointed out by Executive Vice-President Margrethe Vestager and Commissioner Thierry Breton, who are co-responsible for this dossier.Continue Reading The European Commission releases a White Paper on foreign subsidies in the Single Market

On May 26, 2020, the European Commission announced that it would not prolong the Export Authorization Scheme for Personal Protective Equipment (PPE) it had put in place due to the COVID-19 crisis. The Commission explained that the scheme has “served its purpose” in ensuring adequacy of supply of PPE in the EU. The measures ceased to apply on the same day.

Since April 26, 2020, exporters have requested more than 1,300 authorizations, of which 95% have been approved. As a result, over 13 million protective masks, around 1 million protective garments and over 350,000 protective masks and visors have been exported from the EU since April 16.Continue Reading EU Ends Export Authorization Scheme for Personal Protective Equipment