Criminalising the Violation of EU Restrictive Measures: Towards (Dis)Proportionate Punishments vis-à-vis Natural Persons?

This paper aims at providing a critical perspective on the European Union’s adoption of criminal law as a key mechanism for enforcing sanctions against Russia and Belarus following the 2022 invasion of Ukraine. It scrutinizes the evolution and expansion of the EU’s sanctions regime, revealing a strategic shift towards a criminal law-based enforcement approach. With an emphasis on the EU’s legal framework, this contribution highlights the diverse national responses to breaches of these sanctions, ranging from administrative to criminal penalties. The lack of uniformity in these responses has sparked a significant EU initiative to criminalise sanction breaches, leading to a proposal for harmonizing criminal definitions and penalties across Member States. This initiative, while aiming to streamline enforcement and eliminate impunity, raises questions about the proportionality and appropriateness of using criminal law in this context. This paper delves into these concerns using the principle of proportionality of penalties enshrined in Article 49(3) of the Charter of Fundamental Rights of the European Union as a benchmark. It critically analyses the proposed criminal penalties, questioning their alignment with the severity of the offences and the rationale behind categorising offence as either minor or serious. Besides, the examination extends to the impact of monetary thresholds on determining the gravity of offences, the cumulative effect of linked offences, and the potential risks of overcriminalisation. Finally, it offers insights into the latest developments in the legislative process, discussing the European Parliament and Council’s stance on the proposal. The paper concludes by advocating for further refinements to ensure that the criminalisation of violation or circumvention of restrictive measures remains proportional and effective, ultimately upholding the EU’s commitment to justice and accountability in the face of international crises.