The restrictive measures of the European Union, together with the sanctions adopted by the United Nations Security Council, are the preferred instruments for imposing coercive measures on third countries.
United Nations members, including Luxembourg, are responsible for taking the necessary steps to implement the decisions of the Security Council for the maintenance of international peace and security and to implement them directly and through their action in the United Nations. appropriate international organizations of which they are part.
Luxembourg, as a Member State of the European Union, must also implement the European restrictive measures by adopting the necessary legislation or implementing measures. It is up to the European Union to lead the common foreign and security policy. The autonomous embargoes have a legally binding value for all Member States.
Adoption of restrictive measures on the level of the European Union
In order to define the European Union's position on a particular geographical or thematic issue, the Council adopts decisions (worded "common positions" before the entry into force of the Lisbon Treaty).
For matters falling within European competence, such as the interruption or partial or total reduction of economic and financial relations with a third country, a Council implementing regulation is necessary. This Regulation will be directly applicable within the Member States of the Union. It will create rights and obligations for those concerned, ie the Member States but also economic operators and European citizens. These restrictive measures will be subject to judicial review by the Court of Justice and the General Court of the European Union.
Where the restrictive measures incorporated in the Council Decision do not fall within the competence of the European Union, Member States must adopt national measures. This is the case with arms embargoes, as the arms trade remains a national prerogative.
Objectives of the restrictive measures
The restrictive measures of the European Union pursue different and complementary aims. When adopted to protect international peace and security, they implement the international sanctions adopted by the United Nations Security Council. Initially global instruments, also affecting civilian populations, the measures have become more targeted, while they target smaller recipients and spare the civilian population.
For the European Union, the effective use of sanctions is an important means of maintaining and restoring international peace and security in accordance with the principles of the UN Charter and the EU's Common Foreign and Security Policy.
If necessary, the Council may impose "stand-alone sanctions". It may, by adopting UN sanctions, decide on more stringent measures to complement enforcement measures.
Restrictive measures can also respond to the breach of values binding the European Union to third-country partners. The serious ignorance of principles whose respect is generally considered to be in the interest of the international community as a whole. The restrictive measures adopted are in response to this lack of knowledge of universally recognized values on the international scene.
Content of restrictive measures
The content of the restrictive measures is in principle not limited. Measures can therefore take different forms, depending on the objectives pursued and their expected efficiency. It could be:
- diplomatic sanctions (expulsion of diplomats, severance of diplomatic relations, suspension of official visits);
- the suspension of cooperation with a third country;
- boycott of sport or cultural events;
- financial sanctions (freezing of funds or economic resources, prohibition of financial transactions, restrictions on export credits or investments);
- prohibition of flights;
- restrictions on admission;
- trade sanctions (restrictions on the export and import of certain goods and resources, including arms embargoes and embargoes on equipment that may be used for internal repression).
In particular, arms embargoes aim to stop the flow of weapons and military equipment to conflict areas or regimes that may be used for internal repression or aggression against a foreign country. They usually include:
- a ban on the sale, supply, transfer or export of armaments and related materials of any kind, including weapons and ammunition, military vehicles and equipment, paramilitary equipment and spare parts;
- a prohibition on providing financing, financial assistance and technical assistance, brokerage services and other services related to military activities and the supply, manufacture, maintenance and use of weapons and equipment related of any type.
An embargo on dual-use items is applied on a case-by-case basis, particularly where there are risks associated with the manufacture of weapons of mass destruction.
Where an internal enforcement policy is at the origin of the imposition of EU restrictive measures, the Council also imposes restrictions on the material used for internal repression and the related services, such as maintenance and repair.
European embargoes also mention the prohibition to provide technical assistance and other services related to military activities and the delivery, manufacture, maintenance and use of armaments and related materials, a prohibition to provide financing or financial assistance, directly or indirectly, and a prohibition on providing brokerage services as defined in the European Common Position on arms brokering.
Economic and financial sanctions may take the form of prohibitions on exports or imports (which may apply to specific products such as oil, timber or diamonds), bans on the provision of specific services (brokerage, services financial, technical assistance), prohibition of theft, bans on investments, payments and capital movements or deletions of tariff preferences.
Third-country nationals may be subject to a ban on entry into the EU, as Member States must take all necessary measures to prevent the entry or transit of on the list.
Implementation of restrictive measures in Luxembourg
The restrictive measures implemented by the Grand Duchy of Luxembourg in commercial matters against certain States, political systems, persons, entities and groups may include:
- the prohibition or restriction of commercial, industrial, economic, technical and scientific activities of any kind;
- the prohibition or restriction of providing technical assistance, brokerage services, financing or financial assistance in connection with a State, a political regime, a natural or legal person, entity or group to which this Act applies; and the regulations made in its execution;
- complete or partial interruption of economic relations and of rail, sea, air, road, river, postal, electronic and other means of communication;
- the prohibition of admission to the territory of the Grand Duchy of Luxembourg or transit through the same territory.
They impose themselves:
- to natural persons of Luxembourg nationality who reside or operate on or from the territory of the Grand Duchy of Luxembourg or from abroad; and
- to legal persons having their registered office, a permanent establishment or their decision-making center in the territory of the Grand Duchy of Luxembourg and operating on or from the territory of the Grand Duchy of Luxembourg or from abroad; and
- to all other natural and legal persons who operate on or from the territory of the Grand Duchy of Luxembourg.
They are adopted by Grand-Ducal regulation. This regulation designates the States, political regimes, natural and legal persons, entities or groups subject to the restrictive measures.
The Grand-Ducal Regulation also determines the measures that apply.
Pending the formal taking of decisions in the United Nations or the European Union, the Grand Duchy of Luxembourg may, by Grand-Ducal Regulation, impose a restrictive measure against States political regimes, individuals, entities and groups, to defend national and foreign security or the vital interests of the country. These Luxembourg sanctions will be valid for a maximum period of 60 days, and its effects expire automatically at the end of such period, except for a duly justified extension for periods of 30 days respectively.
In the amended Grand Ducal Regulation of 14 December 2018 on export control, all restrictive measures are listed in Annex 1, structured in different points for the respective countries (starting with Afghanistan in point 1 and ending with Venezuela, point 22°).
The approach chosen is the following. For restrictive measures falling within the competence of the European Union, Annex 1 is limited to a reference to the Regulation of the Council of the European Union adopted pursuant to the Council's political decision. For restrictive measures falling within the competence of the Member States, Annex 1 indicates the Luxembourg national measure necessary to apply the measures decided by the Council to the Grand Duchy of Luxembourg.
As the restrictive measures are regularly updated at the level of the Council of the European Union, the implementation at the level of the Luxembourg legislation requires regular modifications of Annex 1.
The restrictive measures applicable by country can be consulted by consulting the schematic "country" forms (see section "More information" below).
Whoever does not respect a restrictive measure is likely to be punished with imprisonment of 8 days to 5 years and/or a fine of EUR 251 to EUR 250,000.
Where the offense has resulted in a substantial financial gain, the fine may be increased to four times the amount of the offense.