Over the past few months a number of developments have highlighted the growing pressure in favour of reactive sanctions implementation in the EU and the UK.

New EU chemical weapons sanctions regime

On October 15, 2018, the Council of the EU adopted a new programme of restrictive measures (Council Regulation (EU) 2018/1542). Where necessary to address the use or proliferation of chemical weapons, the EU is now able to impose asset freezes and travel bans on persons and entities anywhere, regardless of their nationality and location, and forbid EU persons and entities from making funds available to them.

The new regime was first hinted at on March 22, 2018 and announced on June 28, 2018, shortly after the use of the nerve agent “Novichok” in the attempted assassination of UK citizen Sergei Skripal and his daughter in Salisbury on March 4, and in the context of repeated chemical attacks in the Syrian Civil War (the United Nations first formally alleged chemical attacks in August 2013, and there have been numerous incidents receiving international condemnation since). The process for making designations under the new programme is equivalent to the process for under other EU sanctions regimes, i.e., for individuals or entities to be sanctioned, the Council would amend the regulation to include names in the annex. The Council may make such amendments on the basis of information supplied by EU Member States.

No designations under this regulation have yet been made, but there has been media speculation that the UK has been pushing for the Russian individuals alleged to have carried out the Salisbury attack to be targeted.

Decision making by the EU in matters of foreign and security policy

Currently, the establishment of new EU sanctions regimes requires the unanimous consent of the Council of the EU. The vast majority of decisions in other policy areas (around 80% of all EU legislation) are taken by “qualified majority,” which is when:

• 55% of member states vote in favour; and
• the proposal is supported by member states representing at least 65% of the total EU population.

In a European Commission report dated September 12, 2018, the Commission called for the qualified majority procedure to be applied to more areas of Common Foreign and Security Policy (“CFSP”) (including sanctions) where the Council currently acts by unanimity, such that the EU might react to foreign policy developments in a more agile manner. The report argues that, for various reasons, the requirement of unanimity leads to delays in decision-making. EU leaders will discuss the recommendation at the Council meeting in May 2019.

Brexit, and the view from the UK

On November 14, 2018, an in-principle agreement was reached on the withdrawal of the United Kingdom from the EU (the “Draft Withdrawal Agreement”). The Draft Withdrawal Agreement did not provide significant further detail on the alignment of UK sanctions policy with CFSP, but statements by the UK Prime Minister indicated that the Government’s position remained the same as previously stated – to have the flexibility to allow for an independent foreign policy following the post-Brexit transition period from March 29, 2018 to December 31, 2020 (the “Transition Period”), but to retain security cooperation with the EU and to continue working closely with the EU in terms of sanctions implementation.

As described in our previous blog post, the UK recently passed legislation to allow its own sanctions policy independent of the EU following Brexit. This legislation allows for greater flexibility in developing a national sanctions policy independent of the EU: government ministers may impose, via regulations, new financial sanctions without going through the normal legislative process (though the measures must be presented to Parliament after being made and approved by each House within 28 days).

Comparison with the United States

The sanctions implementation process in the United States is relatively agile. Broadly speaking, the President has the ability introduce new sanctions measures by Executive Order at very short notice and without any lengthy legislative process. The U.S. Department of State introduced new measures against the Russian Government in August in response to the Salisbury incident (see our blog post here), using an existing authority (the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991). Earlier this month the State Department indicated its intention to proceed with follow-on sanctions on Russia pursuant to this legislation. The U.S. has long maintained comprehensive sanctions on Syria.