Norwegian Sanctions Law: The Current Cooperation with the European Union

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Norwegian Sanctions Law: The Current Cooperation with the European Union

Identifying issues for the Norwegian Courts judicial review in the context of sanctions measures adapted pursuant to EU Restrictive Measures

Candidate number: 8207

Deadline: 4th of August 2021

Word count: 17462

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Abstract

This thesis looks at some of the main sources of Norwegian Sanctions Law, and seeks to identify and highlight the main issues posed by Norwegian practices in aligning with EU restrictive measures. Norway is not bound to adopt the Council Decisions and Sanctions Regulations issued pursuant to the EU’s Common Foreign and Security Policy, which means that the established frameworks for their cooperation does not regulate the relationship between Norway and the EU in this area.

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List of Abbreviations

CFR Charter of Fundamental Rights of the European Union.

CFSP Common Foreign and Security Policy.

CJEU Court of Justice of the European Union.

EEA European Economic Area.

EMD European Court of Human Rights.

EU European Union.

ICJ International Court of Justice.

IGO Intergovernmental Organization.

NATO North Atlantic Treaty Organization.

TEU Treaty on the European Union.

TFEU Treaty on the Functioning of the European Union.

UN United Nations.

WTO World Trade Organization.

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General Introduction

1.1 Introduction

In recent years, sanctions have become the tool of choice for many policymakers to respond to major geopolitical challenges.¹ To avoid military escalations, decision makers frequently turn to sanctions in favour of targeted incentives or war, to encourage compliance with international norms, as a middle option between diplomacy and military actions. Sanctions are not a stand along policy, but instead, a tool to either impose a higher cost for committing an action or an attempt to prevent an unwanted action for taking place. They can target individuals, groups, companies, organisations or entire governments and countries.

As one of the major actors, the European Union (EU) is progressively taking use of sanctions measures in response to unsettling conflicts in its neighbourhood, and sanctions have become an increasingly important tool in EU’s external relations.² The Union have been an active actor in foreign policy for many years, and most of what is being conducted today by the EU Common Foreign and Security Policy (the CFSP) is sanctions related.³.

International sanctions are the only coercive foreign policy instrument available to the EU, and because the EU lacks a joint military force, sanctions are considered a powerful foreign policy tool by many EU leaders.⁴ When EU economic restrictive measures are applied, they usually target specific sectors or activities, rather than an entire economy or population.

EU sanctions programs are currently in place against 30 countries,⁵and December 2020, the EU adopted a new sanctions regime against global human rights violations, making it possible to sanction individuals, entities and bodies that have allegedly violated human rights.⁶ The EU impose measures either out of its own initiative (EU autonomous measures) or to implement United Nations (UN) Security Council resolutions.⁷ In regard to the latter, the EU acts on behalf of Member States to ensure that the UN sanctions measures are adopted consistently and harmoniously. The need for EU to impose autonomous restrictive measures independent of the United Nations can be explained by the UN Security Councils permanent

1Heupel 2017 on p. 129

2Richard, Michael and Cornell 2019 on p.3.

3Eckes 2015 on p.538

4Heupel 2017 p.129.

5A complete overview of current EU Sanctions can be found on sanctionsmap.eu 2021

6See Decision 2020/1999 CFSP and Regulation 2020/1998 EU, published in Official Journal of the European Union L 410I 7 December 2020.

7Richard, Michael and Cornell 2019 p.44.

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members right to veto,⁸ which frequently hinder the Security Council to take meaningful actions against violations of international law where the interests of the violators align with those of one of the five permanent members.

Illustrative of this issue is the situations surrounding the Ukraine crisis, with the illegal annexation of the Crimea region of Ukraine in 2014, where Russia’s position in the UN Se- curity Council made it difficult for the UN to issue the appropriate measures against Russian involvement. This lead the EU to introduce comprehensive restrictive measures against Rus- sia through its autonomous sanctions regime in 2014. The measures were introduced in three phases,⁹and include asset freezes and travel bans,¹⁰trade restrictions¹¹and targeted measures against sectors of the Russian economy.¹². The measures were recently extended until June 23, 2022. China and Russia also continue to use their veto-powers to restrain UN sanctions against Syria for the use of chemical weapons in attacks on its own civilians several times.

Norway maintains a variety of sanctions, ranging from comprehensive to more limited restrictions. As a small country with limited influence on global trade policies, Norway is reliant on international cooperation to secure national interests and achieve global signific- ance, and as of now, all sanctions imposed in Norwegian legislation descend from either EU or UN sanctions. Norway do not have a tradition of issuing independent unilateral sanctions.

As of July 2021, Norway has 29 sanctions in force against States and non-state actors.¹³ Over the last two decades, European Union legislation have continued to have a tre- mendous impact on Norwegian law and politics. The Ministry of Foreign Affairs has poin- ted out that "Norwegian foreign policy starts in Europe".¹⁴ In addition to the fundamental EEA-agreement, which creates the grounds of Norway’s cooperation with the EU, there are several other agreements between Norway and the EU covering a variety of areas outside of what is traditionally considered matters of EEA, which has expanded the cooperation to areas such as defense, border control, asylum, police co-operation and more. In White Paper (2012-2013),¹⁵ the Norwegian Government underlines the importance of taking full use of the opportunities and room for manoeuvre provided by these agreements to promote Norwegian interests as effectively as possible. Agreements and participation in Schengen, WTO, the EEA and other free trade agreements enables Norway to export the agreed-upon products without encountering high tariff barriers.

Along with the increased legal integration with the European Union, there is a significant

8See Article 27(3) of the Charter of the United Nations, which establishes that all substantive decisions of the Security Council must be made with "the concurring votes of the permanent members".

9europeansanctions.com.Sanctions Profile: Russia. EU Sanctions.URL:https://www.europeansanctions.

com/region/russia/(visited on 24/06/2021)

10Council Regulation (EU) 269/2014 and Council Decision 2014/145/CFSP.

13An overview of all Norwegian sanctions measures can be found at Regjeringen.no. Sanksjoner og tiltak.

Utenriksdepartementet. 18th June 2021. URL: https : / / www . regjeringen . no / no / tema / utenrikssaker / Eksportkontroll/sanksjoner-og-tiltak1/sanksjoner-og-tiltak/id2008477/(visited on 28/07/2021)

14The Ministry of Foreign Affairs released a strategy for cooperation with the EU for the period 2018-2021 in May 2018. See Strategy (2018-2021), Ministry of Foreign Affairs Norway, "Norway in Europe. The Norwegian Government’s strategy for cooperation with the EU 2018–2021" (Strategy 2018-2021). 09.05.2018.

15Meld.St.5 (2012–2013) Report to the Storting on The EEA Agreement and Norway’s other agreements with the EU.

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growth in the number of international obligation Norway is engaging in, and Norwegian law is subject to increasingly comprehensive supranational agreements. This has caused fundamental changes to the character of the legal system of Norway, and the relationship between law and policies. By example, The Schengen Agreement, covering passport freedom between European countries and a common transit control, together with the Agreement of a common practices in immigration policies, have the possibility of posing questions as to the relationship between the parts of EU law Norway is obliged to follow under international law, and the activities of EU that fall outside the scope of the cooperation. If, by example, Norway provides visa to a person targeted by a EU travel ban not incorporated in Norwegian law, will this pose a challange on the Scenhen cooperation? This is illustrative of the tangled relationship between law and politics currently playing out in Europe.

Sharing to a large extent the same core values as the EU and its Member States, Norway has chosen to align with most of EU’s sanctions measures.¹⁶ When EU imposed sanctions against Russia in 2014, Norway also imposed sanctions of the same kind.¹⁷

1.2 Background

Norway is a dualistic state, meaning that the national legal order is seen as a separate legal system to international law. This means that without regards to whether Norway is obliged under international law to act in conformity with e.g. sanctions decision by the UN Security Council to fulfill its obligations under the UN Charter or chooses to align with like-minded allies such as the EU out of political interests, a specific implementation Regulations is required for the applicability of these rules on Norwegian nationals and territories.

International regulations and decisions are normally implemented in national law by means of a legal regulation that either refer to the legal basis in international law (incorporation) or include a rendition which is adjusted to the system used in Norwegian legislation (transformation). Sanctions are commonly implemented by means of incorporation, i.e. by imposing a regulation that refer to the sanctions legal origin as the regulatory grounds of the sanction.¹⁸

When Norway decides to align with EU restrictive measures, the sanctions implementation regulations are imposed on the basis of The Sanctions Act § 2.¹⁹. Although the authority to implement sanctions autonomously lies with the Norwegian Parliament, the custom seems to be that the Norwegian sanctions are implemented under reference to the EU restrictive measures, adjusted with national amendments if needed or otherwise seen necessary. As a result, the detailed descriptions of the sanctions measures imposed through these Reg- ulations are evaluated and decided by an organisation Norway is not a Member of. The

16EU measures not incorporated by Norway include by example EU’s terror list and the measures against ISIL and Al-Qaida, restrictive measures against Bosnia-Herzegovina, or against Turkey for drilling activities in the eastern part of the Mediterranean sea, as well as the EU’s additional measures to UN’s sanctions against The Republic of Kongo.

17See the Norwegian Regulation of 15. August 2014 no. 1076. Norway also aligned with EU sanctions after the poisoning of politician Alexei Navalny.

18More on this in Chapter 4.

19The legal basis of these Regulations will be examined further in Chapter 3 and 4.

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Regulations themselves tend to include little explanations other than the national adjust- ments that are taken, and the main content of the national sanctions is thus found in the EU Council Decision. This raises the question of EU laws legal status when interpreting the Norwegian Sanctions.

1.3 Statement of the Research Question

The aimed obstacles of this research work is (i) to examine the relationship between Nor- wegian sanctions law and EU restrictive measures, so to determine the impact EU institutions have on Norwegian sanctions; and (ii) to conclude on a degree of integration pursued through the New Sanctions Act. Remarks on the nature and main developments of Foreign Policy in the European Union, and complications these have for the relations Norway has to the European Union, are included as illustrative for some of the characteristics surrounding sanctions law making it such a complex area of foreign policy.

Since Norway can choose not to participate in the measures and to lead another foreign and security policy than that pursued by the EU, the cooperation with EU on sanctions do not entail a legal obligation under international law for Norway and do not actualize questions on transfer of powers. However, the factual basis of the sanctions measures are found in EU secondary legislation, rather than in Norwegian authoritative documents.

Thus, it is appropriate to evaluate the status these Regulations have in Norwegian law and the competence given Norwegian authorities to implement EU restrictive measures.

1.4 Background and Justification

The objective of this thesis is to provide a literary contribution on Norwegian sanctions law, addressing the current practices of sanctions measures from a Norwegian perspective. While sanctions law and practices have been subject to major developments in the last decade, both globally and nationally, it has been of little interest to the Norwegian public.

Norway’s alignment with the EU restrictive measures is an important, but often neglected part of Norway’s relation with the EU.²⁰ When the United Kingdom began the process of exiting the European Union, several scholars looked towards Norwegian cooperation with EU to examine the alternatives UK should pursue as a third-nations.²¹ While Norwegian researches are amongst those who attacked these matters, the overall awareness of the scope of Norway’s integration with the EU seems to remain with the particularly interested.

The Norwegian Government has, however, as illustrated during the introductory remarks, shown great interest in closer cooperation’s with the European Union.²² Norway and the EU share fundamental values and promote to a large extent the same objectives with regards to foreign policy activities, and most of Norway’s closest allies are members of

20Ulf Sverdrup 2021

21See by example Huggins et al. 2019 and Svendsen 2018.

22See e.g. Meld.St.5 (2012–2013), Meld. St. 36 (2016–2017) and the Strategy (2018-2021).

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the EU.²³ These include to core policies such as human rights, democracy, climate change and the rule of law.²⁴ However, the increased integration of CFSP-matters among the EU Member States has been a challenge for Norway’s cooperation with EU.²⁵Clarity regarding the basis of the cooperation is becoming more important in each case, as the procedures for developing legislation in the EU has become more complex.

Examining the cooperation between Norway and the EU in the field of sanctions, the impact from EU expands beyond the political sphere, and has also lead to legislative changes in Norwegian statutory law. Norway adopted a new Sanctions Act on the 16. of April 2021, which according to the preparatory work,²⁶ was motivated by the wish of providing suffi- cient legal basis for adopting measures similar to the EU restrictive measures against the proliferation and use of chemical weapons,²⁷, against cyber-attacks,²⁸and the against serious human rights violations and abuses.²⁹. The provisions were formulated so to ensure the government the ability of implementing sanctions and restrictive measures quickly and efficiently, to provide clarity regarding the types of measures that can be implemented on the basis of national law, and also strengthen the empowerment of relevant authorities, so to provide a basis for implementation of the new types of sanctions measures that are emer- ging.³⁰ On 11. of May 2021, the three EU Regulations posing restrictions in the mentioned areas entered into force in Norway, pursuant to § 2 of the new Sanctions Act.³¹

1.5 Further Presentation

Chapter 2 will describe the terminology of sanctions, and define which measures are re- viewed in the dissertation. Chapter 3 will explain the method used, and give an overview of the legal sources that create the background for this research. It will evaluate the available Norwegian Sources, followed up by an examination of the sources of EU law.

Chapter 4 assess the implementation of EU restrictive measures within the EU, while Chapter 5 look at the process of incorporating these in Norwegian law. is the main part of this thesis, and will evaluate the rules regarding the scope of the governments authority to implement sanctions measures. Chapter 6 evaluate the Rights of listed persons.

23Apart from Iceland, all the other Nordic countries are Member States of the EU. The same goes for most of Norway’s closest allies in NATO.

24See in main TEU art. 21 and § 2 of the Sanctions Act. Further described in the judicial review in chapter 3 and 4 below.

25Other areas where the EU cooperation has developed independent of the EEA is the EU’s police and judicial co-operation in criminal matters and the Economic and Monetary Union (EMU). SeeEØS-rett2011 on p. 30.

26Prop.69 L (2020–2021) on p.8

27Decision (CFSP) 2018/1544 and Regulation (EU) 2018/1542

28Decision (CFSP) 2019/797 and Regulation (EU) 2019/796

29Regulation (EU) 2020/1998

30Prop.69 L (2020–2021) p.8.

31Regulation of 11. May 2021 no. 1456 (chemical weapons), Regulation of 11. May 2021 no. 1458 (human rights violations) and Regulation of 11. May 2021 no. 1459 (cyber-attacks)

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Chapter 2

Terminology

2.1 Introduction

This Chapter aims at defining the scope of this thesis, by setting forth the landscape of sanctions within Norway and Europe. Section 2 starts off by giving some introductory remarks on the excising instruments governing the cooperation between Norway and the EU in general, and some main developments in the integration of foreign policy in the EU frameworks.

In Section 3, the terms ’sanctions’ and ’restrictive measures’ will be defined, while Section 4 describe the limitations taken in relation to the types of sanctions measures that will be focused on during this dissertation.

2.2 Developments

Norway’s economic and trade relations with the EU are mainly governed by the agreement on the European Economic Area (EEA). The purpose of the EEA-agreement is to give the EFTA- states access to the EU’s internal marked, without having being members of the EU. Through the EEA-agreement, the EU laws regarding free movement of goods, services, persons and capital also applies in Norway. It is the most comprehensive international agreement Norway has ever ratified, and provides for a high degree of economic integration, common competi- tion rules, rules for state aid and government procurement. Agriculture and fisheries are not covered by the EEA Agreement. However, Article 19 thereof highlights the commitment of the parties to progressive liberalisation of agricultural trade, which is achieved through the conclusion of separate agreements on that basis.

Norway is bound under international law to incorporate a range of laws and regulations decided by the EU Member states in matters covered by the EEA-agreement. The EU laws are transposed into Norwegian statutory law, and a lot of effort is put into making sure Norwegian law is in harmony with relevant EU laws. EU legislation relating to the four freedoms is regulated by the Parts II–V of the EEA Agreement, and is incorporated into one of its annexes. Cooperation in areas outside the four freedoms does not in principle entail a legal obligation to cooperate within the framework of the EEA Agreement, and is regulated by Part VI of the EEA Agreement.

When Norway entered into the EEA-agreement in 1992, the EU-constellation it partnered

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with looked quite different than today´s European Union. Developments of the EU cooperation in recent years, both in terms of legal and procedural changes and through policy changes, has gradually erased the original parallel between EU treaty provisions and the EEA Agreement and made it a more complex matter to establish EEA relevancy for EU activities. It can be difficult to assess the degree to which an act affects the internal market, and to reach agreements on this between the EU and EFTA countries.

While the EU Member States have been coordinating foreign and security policy within the framework of the European Political Cooperation (EPC) since the 1970s,³²the EU’s Com- mon Foreign and Security Policy (CFSP), which today serves as the EU’s mechanism for adopting common foreign policy positions, was first established as a pillar of the EU through the Maastricht Treaty, which entered into force 1 November 1993.³³ The Maastricht treaty altered the former European treaties and established a Union based on three pillars: the European Communities, the CFSP and the Cooperation in the field of Justice and Home Af- fairs (JHI).³⁴While foreign policy was an area of EU activities, it was not, strictly speaking, a competence of the EU.³⁵According to Article J.1 of the Maastricht Treaty, the objectives of the CFSP was to "safeguard the common values, fundamental interests and independence of the Union".

The terms of the Maastricht treaty has later been developed and reinforced by subsequent amendments, most notably the 1999 Treaty of Amsterdam,³⁶ which added a security and defence policy dimension to the Second Pillar;³⁷and the 2009 Treaty of Lisbon, which con- siderably expanded the EU’s competence in foreign policy areas.³⁸ The Treaty abolished the distinction between the European Community and the European Union, and attempted to strike a balance between protecting the distinct character of CFSP while also ensuring con- sistency, in particular between EU law and Member State action.³⁹ It established the post of High Representative of the Union for Foreign Affairs and Security Policy and the European External Action Service (EEAS), which has provided a more coherent organisational framework for EU foreign policy. While some key areas continue to fall under the competence of the Commission, the High Representative and the EEAS are important dialogue partners for Norway in matters of foreign policy. These developments have influence what measures are acceptable to take in a legal sense.

While sanctions measures previously were issued to targeted States, by for example adopting wide trade blocks or blockages on specific sectors in a country, the use of these broadly directed restrictions has shown to have unnecessary consequences for the civilians in the

32Which were written into the treaties through the Single European Act in 1987. See Amt 2021

33Now referred to as The Treaty on the European Union (TEU).

34See European Parliament. The Maastricht and Amsterdam Treaties. Fact Sheets on the European Union.

2021. URL: https://www.europarl.europa.eu/factsheets/en/sheet/3/the- maastricht- and- amsterdam- treaties(visited on 11/06/2021)

35Blanke 2013 p.914

36Officially the Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts. Signed on 2nd of October 1997 and entered into force on 1st of May 1999.

37Auswärtiges Amt. The development of the CFSP. German Federal Foreign Office. ^URL: https : / / www . auswaertiges-amt.de/en/aussenpolitik/europa/aussenpolitik/gasp/-/228306(visited on 11/06/2021)

38See Richard, Michael and Cornell 2019 p.35.

39Blanke 2013 on p.902.

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country partial to the sanction.⁴⁰ To improve the effectiveness sanctions have on political elites and other accountable parties, the trends have shifted towards a more targeted use of sanctions measures.⁴¹ The sanctions at force and implemented under the current conditions, also within the regimes of the United Nations and the European Union, include restrictions targeting the specific individuals, groups, entities or activities engaged in the unwanted affairs. Such targeted sanctions often involve blacklisting a particular group of persons, which can be both individuals or legal entities, and then making them subject to a restrictive measures, such as freezing of economic assets or travel restrictions.

2.3 ’Sanctions’ and ’Restrictive Measures’

2.3.1 Defining Sanctions

While the term ’sanctions’ is conventionally used in legal context when describing punitive measures in response to criminal actions as a means of enforcing obedience to a law⁴², the sanctions referred to in this thesis are what can also be called economic sanctions or international trade sanctions.

Although certainly a matter of law, economic sanctions are inherently politically and policy driven, making it difficult to agree on a clear legal definition of sanctions. The Charter of the United Nations article 41 define sanctions as ’measures not involving the use of armed force ... employed to give effect to[UN Security Council]decisions’. In the preparatory work for the Sanctions Act, the Norwegian Foreign Affairs and Defense Committee explain the legislators use of the term as "a general term for non-military measures adopted by states or organizations taking the form of economic, diplomatic or other types of restrictions directed at a state, group and/or natural or legal persons for the purpose of promoting security or foreign policy interests.".⁴³

There are no explicit definition of EU restrictive measures in EU law. Article 29 TEU, which is the legal basis for the adoption of sanctions measures in the EU,Union to impose sanctions measures,⁴⁴ limits the use of sanctions to be in response to matters of a "geo- graphical or thematical nature" against governments of third countries (non-EU countries), non-state entities and individuals (such as terrorists) to bring about a change in their policy or activity.

Conceptually, sanctions can be explained as non-military tools of foreign policy, used as a reaction against breaches of international law with the intent of changing an unwanted behaviour. The measures are either economically, diplomatic or by other means, with the aim of promoting foreign policies or security interests.

Recent times have involved strong developments in the use of sanctions to enforce a particular type of behavior or prevent unwanted behaviours. On the one hand, there has

40See by example Jones 2014, which discuss the implications of economic sanctions on Russia.

41Moiseienko and Hufnagel 2015 on p. 351.

42See Richard, Michael and Cornell 2019 on p. 2.

43(Translated by the author). See Innst. 290 L (2020–2021) on p. 3.

44This will be explained in greater detail below.

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been a development in the direction of increased use of sanctions aimed at individuals, e.g.

to prevent serious violations of international human rights or international humanitarian law or violations of other fundamental international norms. On the other hand, there is an increased international focus on respect for the human rights of individuals and other actors who are subject to sanctions and restrictive measures. There has also been a major increase in the number of sanction regimes and a changing nature of the content of sanctions, including who the sanctions are aimed at.

2.3.2 Different Types of Sanctions Measures

The content of the UN Security Council’s sanctions and the EU’s restrictive measures will vary according to the necessities of the situation. However, they often include (i) arms embargo;

(ii) export and import restrictions for, inter alia, equipment, goods and technology that can be used for internal repression; (iii) order for the freezing of and a ban on making available money and assets to specified entities and persons; and (iv) travel restrictions.

Financial sanctions include measures that target the assets and financial resources of its subjects. A list of designated persons will define the individuals and entities who are direct subjects of the financial sanctions, while others falling under the jurisdiction of the sanctions will be required to obtain from conducting financial activities with the designated list. This will normally also involve a requirement on financial institutions to freeze the assets of the designated persons.

Trade sanctions are measures forcing import and export restrictions, and will in most cases be targeted towards a state. While trade bans in general include prohibitions on the exchange of vertain goods to or from a state, there are examples of comprehensive trade embargoes being imposed. Comprehensive trade embargoes involve an absolute blockage on trade with the targeted state.⁴⁵ (The EU sanctions regime in relation to Syria imposes certain trade sanctions in relation to that state. Articles 2–11 of Regulation (EU) No 36/2012 set out the relevant import and export restrictions.)

Within the European Union, the term ’restrictive measures’ is used in the Treaties when referring to sanctions, covering the same measures as described above.⁴⁶. While ’restrictive measures’ is used in most EU legal sources, the terminology in EU is not consistent, and the EU frequently refer to its own measures as ’sanctions’.⁴⁷.

In Norway, the terms "sanctions" and "restrictive measures" are used to distinguish between measures originating from the United Nations (sanctions) and the EU (restrictive measures).⁴⁸ For the purpose of this thesis, the term ’sanctions’ will be the general term used in reference to measures as described above, while "restrictive measures" is used with particular reference to measures imposed by the European Union.

45Richard, Michael and Cornell 2019 on p.4.

46The Treaty of the Functioning of the EU (TFEU) use the term "restrictive measures".

47By example, the EU has established a website containing an updated overview of all current EU restrictive measures, with the title "EU Sanctions Map". The sanctions map is found at sanctionsmap.eu. EU Sanctions Map. The European Union. Last updated: 19.07.2021. ^URL: https://sanctionsmap.eu/#/main(visited on 23/07/2021)

48See Finanstilsynet. Oppdatert veileder om frysbestemmelsene. 17th Apr. 2018. URL: https : / / www . finanstilsynet.no/(visited on 17/07/2021) on p.5.

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United Nations Security Council Resolutions

Norway is bound by international law to implement sanctions decisions taken by the United Nations Security Council. Pursuant to Articles 24 and 25 of the Charter of the United Nations, all UN members states are obliged to align with the UN Security Council measures, and in conjunction with Article 103 of the Charter, this obligation take precedence over other obligations under international law.

The main objectives of the UN, as stated in the Preamble to the Charter, is to ‘establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained’.⁴⁹ The UN’s primary mandate is peacekeep- ing,⁵⁰and in pursuing this objective, the UN Security Council is granted significant powers under Chapter VII of the Charter. Among these powers is the ability to impose measures not involving the use of force under Article 41 of the Charter. Sanctions measures, which range from comprehensive trade embargoes to individualised asset freezes, are generally understood to fall within the concept of measures not involving the use of armed force.⁵¹

Pursuant to Article 41 Chapter VII of the Charter, the UN Security Council may impose sanctions to preserve or restore international peace and security. In accordance with Article 41, the Security Council may decide which measures shall be taken to implement the Secur- ity Council’s decisions, apart from those involving the use of armed forces. The provision exemplifies what these measures may entail, which include complete or partial interruption of economic relations and breaking with diplomatic relations. Article 41 also provides that the Security Council may call upon Member States to apply any measures adopted.

Action taken under Chapter VII requires the prior determination by the Security Council of a ‘threat to the peace, breach of the peace, or act of aggression’ under Article 39 of the Charter. But as long as the Security Council has come to the conclusion that a situation con- stitutes a threat to international peace and security, the Council have considerable latitude in adopting sanctions and deciding the closer content of these. This is illustrated through the measures that have been decided by the Security Council over time. The measures have changed over time, from comprehensive trade embargoes to more targeted measures such as arms embargoes, freezing of economic resources and travel restrictions targeting individuals and entities, and sectorial sanctions targeting certain sectors of particular importance in a conflict.

2.4 Limiting the Scope of this Thesis

Sanctions originating from resolutions taken by the United Nations Security Council are binding upon Norway and the EU Member States inline with their obligations under international law. The EU Member States have chosen to use the EU as a tool of coherent implementation of these UN resolution, and granted the EU competence to acts on behalf of the Member States to ensure that the UN sanctions measures are adopted consistently and harmoniously.

49The Charter, Preamble, 3.para.

50See the Charter art. 1(1).

51Richard, Michael and Cornell 2019, 1. UN Sanctions on p.11

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When the EU implements UN Security Council Resolutions, it adheres to the terms of those Resolutions, but may also decide to apply further restrictive measures to enhance the effectivity of the UN sanction. This is done mainly in the context described above, i.e. in situations where the UN Security Council struggle to reach an agreement due to veto-powers.

While these amendments originate from the same sanctions regime as the EU autonomous measures and the tendency seem to be that Norway practice alignment with these amendments as well, the additional regulation originate from an obligation under international law.

Economic sanctions might contravene with Norway’s treaty obligations, originating from a number of bilateral and multilateral agreements. By example can sanctions often include the freezing of assets or a ban on trades with targeted sectors or businesses, which are activities covered by the World Trade Organization agreements and The General Agreement on Tariffs and Trade (GATT), to which Norway is a party of. However, the EU Member States are to a large extent party to the same agreements as Norway, and the EU will, thus, have to take into account the same international obligations in its sanctions practices.

This thesis will focus on EU autonomous restrictive measures. These are sanctions that are initiated and implemented by the EU, without any form of UN intervention. The thesis will not focus upon the measures implemented pursuant to obligations in international law, i.e. pursuant to UN Security Council Resolutions. Since Norway and the EU Member States are subject to the same limited freedom of action with regard to the implementation of sanctions measures, other bilateral or multilateral agreements that might interfere or conflict with sanctions measures will not be covered in this dissertation.

The focus of this thesis are non-military sanctions that restrict business dealings, using a general sense of the term, i.e. the types of measures that restrict whom, where and how people and companies can do business. Armed embargoes fall outside the scope of this thesis.

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Chapter 3

Methodology and Legal Evaluation

3.1 Overview of the Legal Methodology

In the following Chapter, the available legal sources and their status in the respective legal systems will be presented.

The analysis of the scope of judicial review by the Supreme Court and the European Courts will adopt a de lege lata approach. The analysis will be conducted through a dog- matic legal method, meaning that the research tries to provide a systematic exposition of the principles, rules and concepts that governs the particular field of law, and reviews the relationship between these principles, rules and concepts so to solve the uncertainties and possible gaps in the existing laws.⁵²

Although providing an analysis of the solutions under the EU body of law alongside the evaluation of Norwegian Sanctions law, this it is not strictly for comparative reasons.

Restrictive measures on the EU-level will contribute to the understanding of the status these sources have in Norwegian law, not under comparison to Norwegian legal sources. The regulations found in Norwegian legislation are reliant on the process happening within the EU.

While the legal basis for this thesis will mainly focus on sources of Norwegian law and EU law, the topic of sanctions will require taking into account contributions from other international sources and foreign national sources as well. To substantiate the use and value of the different sources used during the assessment of the courts judicial review of sanctions measures, Section 2 of this Chapter will provide an overview of the relationship between the different sources available in the Norwegian and EU legal systems, and a brief explanation of how they should be interpreted thereunder. Section 2 also gives some remarks on the overall method applied in the evaluation of the scope of the courts judicial review.

On the basis of the methodology described above, the legal sources used in this dissertation will be presented in Section 2. The main legal basis for implementing sanctions in Norwegian law is the Act of 16.April 2021 no.18 (the Sanctions Act).⁵³ This is an enabling act, which provide legal authority for the Norwegian Government to implement measures as described in its provisions.

For the purpose of evaluating the legal aspects of Norwegian sanctions adopted pursu-

52Wacks 2017 on page 6.

53Lov av 16.april 2021 nr.18

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ant to EU autonomous restrictive measures, it is appropriate to review the procedures for adopting and managing restrictive measures within the EU as well. When Norway issue a sanctions regulation, the closer content of the measures are found in the corresponding EU Regulation. The Norwegian regulation will amend the relevant EU documents with descriptions as to how these documents should be understood under Norwegian jurisdiction, e.g. by stating the territorial scope the regulation should have and which provisions that are adopted, and include a translated version of the relevant EU Regulation. Understand- ing the content of the Norwegian Regulations adopted pursuant to The Sanctions Act § 2, thus require an evaluation of the scope of the competence if the EU to implement restrictive measures pursuant to TEU and TEUF.

3.2 Assessment of Available Sources

The sources available for this dissertation is very restricted. As sanctions have undergone considerable changes in recent years, the legality of different types of measures has been redefined together with the new attitudes of international actors.⁵⁴

The subject matter of sanctions in Norway is, by necessity, cross-jurisdictional. This is due to the formulation of the legal basis of sanctions found in Norwegian law, which sets requirements for the origins of the sanctions measures adopted through Government Regu- lations. The study of the legal aspects of Norwegian sanctions therefore involves looking at different branches of law. A review of the available sources will be presented in this section.

3.2.1 Legal Sources of Norwegian Law

The Norwegian legal sources used in this dissertation are mainly formal and material law, preparatory work, court practice and contributions from international sources. In Norwegian legal method, conflicts between legal sources are solved through three priority principles.

The first, and most important, is the principle of lex superior, giving rules of higher rank precedence. In accordance with this principle, the Norwegian Constitution takes precedence over formal law, which in turn takes precedence over regulations.

Formal laws are written law issued pursuant to specific procedures.⁵⁵ The legal basis for most sanctions measures in Norway is found in The Sanctions Act.⁵⁶ Travel bans are issued pursuant to The Immigration Act.⁵⁷ These are enabling acts, providing legal authority for the Norwegian Government to implement measures as described in its provisions. They also construct the legal framework to which the imposed sanctions are managed thereafter.

The authority given to the Norwegian Government pursuant to The Sanctions Act depend on whether the sanctions originating from binding Resolutions by the UN Security Council;⁵⁸

54See the remarks on terminology in Chapter 2.

55These are stipulated in The Constitution of the Kingdom of Norway §§ 76-79.

56Act of 16. April 2021 no. 18.

57See Act of 15. May 2008 no. 35

58The Sanctions Act § 1. The provision provides the Government legal basis to implement UN Security Council resolutions issued pursuant to Article 41 of the UN Charter.

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or from intergovernmental organizations (IGOs) or otherwise have broad international support.⁵⁹ Travel bans can be implemented pursuant to either a UN Security Council regulation or a Council decision by the EU.⁶⁰ Norway does not have a tradition of implementing unilateral sanctions measures.⁶¹

The requirements as to the origin of the sanctions measures can be understood by looking at the two previous enabling acts at force prior to The Sanctions Act (2021). They regulated the Governments issuance of Regulations (i)necessary for the implementation of binding UN Security Council decisions;⁶² and (i)to adopt EU Common Foreign and Security Policy decisions.⁶³

Regulations are important sources of material law when evaluating sanctions measures.

Regulations imposed through or on the basis of previous statutory laws are still at force, but they are now regulated under the provisions of the new Sanctions Act.⁶⁴. While the Sanctions Regulations main content is contained in the EU Council Regulation referred to in the regulation, the source have a constrained independent value.

Preparatory works contribute to the interpretation of legal acts, as they prescribe the legislators intentions. Although the legislators released comprehensive preparatory works in relation to the enforcement,⁶⁵ the legal consequences of this new statutory law has not yet manifested in practice. However, the new legislation mainly entails a continuation of the previous legal status, and sources connected to the repealed legislation can thus still be of relevance. These are also quite restrictive and due to developments in recent years, the legality of the sanctions that could be implemented pursuant to former law is not the same as those imposed today. Their preparatory works will, however, give some guidance as to the purpose of Norwegian Sanctions practices.

The question of sanctions has, as far as the author knows, not been fronted for the courts yet. There are, however, some court decisions related to the courts judicial review of EU Regulations from other areas of law which can contribute to this assessment.

Norway is not bound by the decisions of the European Court of Justice, which are based on EU legislation, and which goes beyond Norway’s human rights obligations. Nevertheless, it is considered relevant to refer to the guarantees of legal certainty that the European Court of Justice has based on this type of case, and which will be used by the EU both in implementing the EU’s own restrictive measures and binding UN sanctions under international law.

Sanctions is a subject with very little coverage in Norwegian legal literature. While there are authors raising questions to the matter from a social science angle, these sources are limited contributions to the analysis of the legal aspects of Norwegian sanctions practice.

59The Sanctions Act § 2.

60See § 126 in conjunction with the general instruction from the Ministry of Justice and Public Security, GI-2018-1 on p. 3

61Prop.69 L (2020–2021) on p. 10

62Lov 7. juni 1968 nr. 4 (repealed) § 1 defining its legislative scope.

63Lov 27. april 2001 nr. 14 (repealed) § 1. See also Ot.prp.nr.10 (2000–2001) on p.2.

64See the Sanctions Act § 8 third section

65See Prop.69 L (2020–2021).

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3.2.2 Legal Sources of European Union Law

The dissertation aims to establish current law of European Union restrictive measures. The Union has its own legal order, founded on the rule of law.⁶⁶ The EU legal method is applied where this thesis interprets EU law. The legal sources available in EU law are divided into primary and secondary sources, as well as supplementary law.

Primary sources of law is the treaties between the EU Member States, on which the European Union is established. The two key constitutional treaties of the EU is (i) the Treaty on the European Union (TEU) and (ii) the Treaty on the Functioning of the European Union (TFEU). These treaties have the same legal status, and govern the relationship between the EU and its Member states. They also regulate the institutional and procedural processes happening within the EU. A characteristic of the EU legal method is the emphasise placed on contextual and objective elements during interpretation. These objectives are set out in the treaties.

The EU’s sanctions activities happen within the framework of the EU’s overall foreign policy, as part of the Unions Common Foreign and Security Policy (CFSP). The EU exercise competence over CFSP on the basis of Title V Art. 21-46 TEU. The CFSP is part of the EU’s external actions, which is governed by Part 5 Art. 205-222 TFEU.⁶⁷EU restrictive measures are implemented on the basis of TEU art. 29 and TFEU art. 215.

Secondary sources are those resulting from procedures and objectives of the treaties, and can be wither legislative or non-legislative. Art. 288 TFEU describe the legal acts available to the EU and the scope of the different types of secondary legislation. Secondary non- legislative sources are sources of ‘soft law’, which can be used in interpretations, but that do not have a binding effect within the EU. Art. 288 TFEU mention Recommendations and Opinions as non-binding EU acts,⁶⁸but there are also other types of secondary non-binding sources not listed. Of relevance for this thesis are Guidelines and Preparatory documents, such as White papers and Green papers.

Implementation of restrictive measures in the EU happen through Decisions and Regu- lations. Regulations are directly applicable to all Member States and are binding in its entirety.⁶⁹ Decisions are also binding in its entirety, but only on the Member States or subjects it addresses.⁷⁰

Article 47 TEU establishes the EU as a legal personality, with its own independent legal order. EU law is interpreted and applied by the two EU courts: (i)the General Court; and (ii)The Court of Justice of the European Union (CJEU). The EU courts are responsible for the interpretation of all EU law, and the national courts of the EU Member States may apply to the CJEU for a preliminary ruling on the interpretation of EU legislative instruments.⁷¹ Issues related to EU’s implementation of restrictive measures have been evaluated by the Courts several times, and there are thus a great number of contributions to obtain from EU

66Article 2 TEU.

67Art. 346-347 TFEU also apply.

68Art. 288 TFEU para.5

69TFEU Art. 288 para.2 TFEU

70Art. 288 para.4 TFEU

71Art. 267 TFEU

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case law.

Preparatory work does not have the same role in EU law as according to Norwegian jurisprudence. They can, however, help to understand the context in which the rules are implied and thus provide support for how the content should be understood.

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Chapter 4

The Process of Imposing European Union Restrictive Measures

4.1 Introduction

This section will consider the law governing the EU’s competence in matters of CFSP, which set the framework for the legislative processes that lead to sanctions implementation. Firstly, the legal basis for EU’s competence in CFSP matters will be presented, before reviewing the legislative processes that lead to the adaptation of CFSP measures and the objectives they need to take into account.

While internal competences concern the European Union’s internal functioning, external competences are those that fall within the framework of the EU’s relations and partnerships with non-EU countries and international, regional or global organisations. As previously described, restrictive measures are part of the EU’s overall external competence, performed through the Common Foreign and Security Policy. Most of the CFSP activities aims at coordinating the foreign policies of the EU Member States, and rather than imposing a uniform EU policy, it reflects a focus on coherent external relations.⁷² However, CFSP is subject to the EU law principles found in the Treaties,⁷³and thus not solely a driver of EU political intents.

4.2 Legal Basis for the Common Foreign and Security Policy

According to the principle of conferral, laid down in Article 5(2) TEU, the EU can act only within the limits of the competence that is conferred upon it by its Member States. Compet- ence not conferred on the EU by the treaties remain with the Member states.⁷⁴ The division of competence between the EU and its Member States is set out in TEU and TFEU. Pursuant to Article 2(4) TFEU, the EU:

“shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.”.

72Zelyova 2021 p.160.

73Art.23 and art. 40 TEU.

74Art 4 para.1 TEU.

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Article 2 TFEU describe the executive powers entailed in the different categories of EU competences. In specific areas where the EU is conferred exclusive competence,⁷⁵ the EU is granted the sole competence of adopting legislation and legally binding acts, allowing the Member States only to pursue the same when the EU has empowered them or when this is necessary to implement EU acts.⁷⁶ Shared competences imply that the execution of legal acts happen supplementary by the EU and the Member States,⁷⁷in the sense that the EU can take action in areas where the Member States have not done so,vis-à-vis. The EU can also be constricted competence to perform a supportive function.⁷⁸

However, the competence entrusted the EU in matters of CFSP are different from the traditional types of EU competences. It is described as a special type of EU competence, running parallel with that of the Member States.⁷⁹ This means that when the EU exercises its CFSP competences, Member States are not preempted or prevented from taking national action.

4.3 The Objectives of the Common Foreign and Security Policy

The exercise of EU competences is subject to two fundamental principles of EU law, laid down in Article 5 TEU. In line with the principle of proportionality, the content and scope of EU actions may not go beyond what is necessary to achieve the objectives of the Treaties.⁸⁰ The principle of subsidiarity provide that the EU, in areas of non-exclusive competences, only can take actions in so far the objective of a proposed action can not sufficiently be achieved by the Member States, but better could be achieved at EU level.⁸¹ In their actions on CFSP, the Council and High representative must take into account the overall principles of EU as stipulated in the Treaties.⁸².

Articles 3(5) and 21 TEU sets out the objectives and limits of the EU’s external actions.

These provisions set out a comprehensive frame of references for the external actions of all the policies and actions of the EU, for the purpose of determine the model of relations the EU aim to entertain with the wider world, and to guide the EU’s institutions accordingly.⁸³ The objectives of the EU’s foreign policy are set out in Article 21(1) TEU. According to this provision, EU restrictive measures should aim at promoting peace, democracy and the respect for the rule of law, human rights and international law.⁸⁴

Article 21 TEU is the introductory provision of Title V of the TEU on the EU’s external actions, and covers any form and format of external action regulated in the Treaty.⁸⁵ Article

75Art. 3 TFEU describes the areas of EU exclusive competence.

76Art. 2(1) TFEU.

77Art. 4 TEU describe the areas of shared competences.

78Supportive competence is a third category, defined in art. 2(5) TFEU, covering the areas described in art.

6 TFEU.

79Blanke 2013 on p.914.

80Art.5(4) TEU

81Art.5(3) TEU

82Art. 23(1) and art. 40 TEU. The CFSP is subject to these principles.

83Cannizzaro 2021

84eeaction-online. This also follows from Article 21(1) TEU, which describe the principles that should guide the EU in External Actions.

85commentaryon p.838.

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21 TEU tries to give more concrete contours to the general values and objectives of the EU as laid down in Art. 2 and 3 TEU. The title is divided into two chapters. The first chapter comprising only Art 21 and 22 TEU, which sets out some general provisions on the EU’s external action. The second chapter (art. 23-46 TEU) regulates specifically the CFSP of the EU in a narrow, technical sense. (Concerning the competences under the CSFP as well as the instruments and the modes of decision making characteristic for CFSP)

The principles guiding the EU in External Actions is set out in Article 21(1) TEU. Accord- ing to this provision, EU restrictive measures should aim at promoting peace, democracy and the respect for the rule of law, human rights and international law. These values are close to the once on which the EU is founded pursuant to Art. 2 TEU, indicating that the EU, when promoting the principles of Art. 21 (1) TEU in international relations, are defending principles that are both universal and European.⁸⁶ Article 21 allow the Council to issue restrictive measures inline with the objectives of the CFSP against third countries, entities and individuals.

The purpose of the CFSP actions must be to promote one or more of the objectives of the EU’s common foreign and security policy. According to Article 21 TEU, this includes democracy, the rule of law and human rights, as well as peace and international security.

Article 23 TEU, which is part of Title V Chapter 2, states that the EU’s actions within CFSP shall:

"be guided by the principles, shall pursue the objectives of, and be conducted in accordance with, the general provisions laid down in Chapter 1.".

Article 2 TEU contain the shared sets of values in which the EU is based upon. These include the fundamental rights, democracy and the rule of law. What is comprised in the principle of rule of law is difficult to define, but the core requirement of the rule of law is that the decisions taken by courts and authorities that are directed towards individuals, groups and citizens must be as equal and predictable as possible. Under this consideration, it can be argued that all EU institutions with the competence of issuing secondary legislation and rulings with the described effect is obliged, pursuant to Article 2 TEU, to work in a reassuring manner that later can be justified and controlled.

In particular Art. 3 (5) TEU mentions, among the eight central fields of activity of the Union—the external relations of the EU, where the Union shall protect and promote its values and interests and shall contribute to the protection of its citizens⁸⁷). Art. 3(5) TEU continues by stating that such external action shall contribute to peace, security, global sus- tainable development, solidarity and mutual respect among peoples, to free and fair trade, to the eradication of poverty and to the protection of human rights. As a primary objective, Art. 3(5) TEU further mentions strict respect and further development of international law, in particular as far as the principles of the UN Charter are concerned. Art. 3(5) TEU, in conjunction with Art. 21 TEU, thus tries to develop a holistic view of the EU’s external action, binding all kinds of external action—be it actions of CFSP, actions of common trade

86commenton p. 906. “Respect for the principles of the United nations Charter and international law” is the only principle of Art. 21(1) TEU that is not a European value pursuant to Art. 2 TEU.

87Art. 3 para 51 to 5

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policy, development assistance or acts within other, explicit or implicit external competences of the EU to a set of values and principles oriented towards peaceful coexistence, respect of international law and promotion of (COMMENTARY P. 838) human rights and democracy.⁸⁸

4.4 The Execution of Common Foreign and Security Policy Com- petence

The closer content of EU’s competence in matters of CFSP is found through the provisions in Title V, Chapter 2 TEU, as presented in Art. 24 TEU. Article 24(1) TEU states that the scope of this competence covers:

“all areas of foreign policy and all questions relating to the Union’s security.”.

This including the progressive framing of a common defence policy that might lead to a common defence. However, most of the CFSP activities aims at coordinating the foreign policies of the Member States rather than imposing a uniform EU policy. CFSP acts do not have the capacity of direct applicability in the Member States national legal orders,⁸⁹which means that individuals are not, as a rule, directly affected by CFSP measures. An exception from this, however, is where CFSP directly determines the rights of individuals and is of direct and individual concern to individuals⁹⁰, as is the case when the EU implements economic sanctions such as asset freezing or travel or visa bans. These measures are adopted as hybrid CFSP-TFEU measures, first requiring a CFSP decision.

The provision mentions explicitly that this include the progressive framing of a "common defence policy" which might lead to a "common defence". While the Treaty does not specify what “common defence” and “common defence policy” involve, the content can be deduced from other provisions. The common defence and the progressive framing of a common defence policy is, in conjunction with Art. 42 (8) TEU, limited to missions of crisis management outside the Union,⁹¹ and to capabilities provided by the Member States,⁹²pursuant to Art.

42(1) TEU. Article 24(1), however, provides the legal basis for EU competence in CFSP matters, in which the EU is empowered to act in all areas of foreign policy with respect to the CFSP.

Article 24(3) TEU indicates that the Member States are subject to a special duty of sincere cooperation in the area of CFSP,⁹³stipulating that"[t]he Member States shall support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and shall comply with the Union’s action in this area.". This formulation is more stricter than the general duty of sincere cooperation found in Article 4(3) TEU.

The division of competences under the TFEU is generally divided between the Coun- cil and the Commission and the European Parliament, requiring continuous cooperation

88Blanke 2013 on p.828.

89See e.g. Art 28 og 29 TEU.

90Eckes 2015 on p. 340.

91Blanke 2013 p. 916

92Art. 42 para 10 to 11 TEU

93Eckes 2015 on p. 539

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between the institutions. In the field of Common foreign and Security Policy, The Coun- cil is without a doubt the most important institution. According to Article 16 TEU, it is the Council, together with the European Parliament, that is the supreme legislator and body for budgeting in the EU.⁹⁴It is the Council that is entrusted the task of implementing sanctions.

The decision-making in CFSP measures differs from ordinary EU legislative procedures.⁹⁵ The common foreign and security policy is subject to separate rules and procedures and shall be prepared and implemented by the European Council together with the Council acting unanimously.⁹⁶ The Commission and the Parliament does not have a central role in this process, as they would in the ordinary legislative procedure.

Member States can abstain from voting by submitting a formal declaration referencing to Article 31 (1) second paragraph TEU. Whereas the requirement of “unanimity” in this context is to be understood in the sense that no Member State has voted against the decision, c.f.

Art. 238 (4) TFEU, the absent of a Member State does not result in incapacity of the Council to decide on restrictive measures. However, the abstaining Member State will not be bound by the decision. The Member State has to respect the decisions of the EU and is obliged not to take actions against contradicting to the measure.⁹⁷ In this way, it is possible that Member States may refrain from joining the Union’s foreign policy measures without preventing other Member States.

An exception from this, however, is where CFSP directly determines the rights of individuals and is of direct and individual concern to individuals⁹⁸, as is the case when the EU implements economic sanctions such as asset freezing or travel or visa bans. These measures are adopted as hybrid CFSP-TFEU measures, first requiring a CFSP decision.

4.5 The Legal Basis of Restrictive Measures

Legal Basis of CFSP Restrictive Measures

As previously mentioned, material competence of the EU in CFSP appears very broad, and covers"all areas of foreign policy"and"all questions relating to the Union’s security", cf. Article 24(1) TEU. It is stated in theory that the provision should be interpreted restrictively, so that the Union’s foreign policy objectives must remain within the areas mentioned in TEU Article 21 (2) letter a-h.⁹⁹

EU restrictive measures are implemented on the basis of TEU art 29 and TFEU art 215.

The implementation requires two stages. Article 25 TEU refers to the various instruments that can be used to implement CFSP measures. Pursuant to Article 25 (b) (ii) of the TEU, the Union may adopt decisions defining the "position to be taken by the Union". These decisions are adopted by the Council, cf. Article 29 TEU. Article 29 states as follows:

94The Council consists of a Minister from each of the Member States, that have the competence to bind their respective home Member State, cf. Article 16 (2) TEU.

95Art. 289 TFEU.

96Art. 24 (1) 2.para TEU.

97Art 31 second para TEU.

98Eckes 2015 on p. 340.

99Blanke 2013 on p. 853.

Norwegian Sanctions Law: The Current Cooperation with the European Union