Miroslav Šeparović, Helena Majić

RESTRICTIVE MEASURES OF THE EUROPEAN UNION AND THE PROPORTIONALITY OF RESTRICTIONS ON THE FREEDOM TO CONDUCT A BUSINESS AND THE RIGHT TO PROPERTY

Introduction

Restrictive measures of the european union and the proportionality of restrictions on the freedom to conduct a business and the right to property. Analyzes EU restrictive measures (sanctions), their proportionality regarding business freedom & property rights. Compares CJEU & ECtHR assessment methods, focusing on Ukraine war sanctions.

Abstract

The primary objective of this article is to analyse and identify the essential elements of the proportionality assessment method applied by the Court of Justice of the European Union in cases concerning the restrictive measures (sanctions) adopted by the Council, which limit the freedom of entrepreneurship and the property rights guaranteed by Articles 16 and 17 of the Charter of Fundamental Rights. Since these measures amount to interferences with the right to peaceful enjoyment of property protected by Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, this article specifically aims to identify both the similarities and the contentious differences in the proportionality assessment methods used by the CJEU and the ECtHR, especially in the context of the Bosphorus doctrine and the presumption that the protection standard provided by EU law is equivalent to the standards of the Convention. Given their unprecedent character, the article particularly analyses cases of the CJEU concerning sanctions imposed following the war in Ukraine by comparing them with relevant case-law of the ECtHR under Article 1 of Protocol No. 1 to the Convention. Finally, the article provides original conclusions regarding the elements of the lawfulness and proportionality tests applied by the CJEU that should be improved in order to make its practice more consistent and clearer for national constitutional courts, which will increasingly be required to apply both the accepted Convention standards and EU law in cases concern- ing restrictive measures. In this regard, the article also offers conclusions on the principles that constitutional courts should follow in such cases.

Review

The article "RESTRICTIVE MEASURES OF THE EUROPEAN UNION AND THE PROPORTIONALITY OF RESTRICTIONS ON THE FREEDOM TO CONDUCT A BUSINESS AND THE RIGHT TO PROPERTY" sets out an ambitious and timely objective: to critically examine the proportionality assessment method employed by the Court of Justice of the European Union (CJEU) when evaluating restrictive measures (sanctions) that impinge upon the fundamental rights to conduct a business (Article 16) and property (Article 17) under the Charter of Fundamental Rights. This foundational analysis is judiciously extended to consider the interplay with Article 1 of Protocol No. 1 to the European Convention on Human Rights (ECHR), signaling a crucial comparative dimension. The abstract clearly establishes the article's intent to delve into the similarities and "contentious differences" between the CJEU and the European Court of Human Rights (ECtHR) approaches, particularly within the framework of the "Bosphorus doctrine" and the presumption of equivalent protection standards. The methodology described is robust, focusing on an in-depth comparison of the proportionality assessment methods of both high courts. A significant strength lies in the article's contemporary relevance, particularly its specific analysis of CJEU cases concerning sanctions imposed in the aftermath of the war in Ukraine, contrasted with pertinent ECtHR jurisprudence. This focus on current, unprecedented legal challenges promises a valuable contribution to the ongoing discourse. The abstract indicates that the article will move beyond mere descriptive comparison to offer "original conclusions" regarding the elements of the lawfulness and proportionality tests applied by the CJEU that require improvement. This critical perspective, aiming to enhance the consistency and clarity of CJEU practice, is a commendable and necessary endeavor. The anticipated impact of this research is substantial, addressing a critical need for greater coherence in the application of EU restrictive measures and fundamental rights protection. By suggesting specific improvements to CJEU practice, the article aims to equip national constitutional courts – which increasingly face the complex task of reconciling Convention standards with EU law – with clearer guidance. The promise to offer conclusions on the principles these national courts should follow further underscores the practical utility and relevance of the work. Overall, the article appears to be a highly pertinent and analytically rigorous examination of a complex and evolving area of EU law, offering valuable insights not only for academics but also for legal practitioners and national judiciaries grappling with the intricate balance between security objectives and fundamental rights protection.

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