There are plans, especially in the West, to confiscate Russian assets with a view to transferring them to Ukraine. These plans are in tension with international law. New customary international law could crystallize, but normative developments would need the support of non-Western states to legally materialize, argues Cedric Ryngaert.

As we are approaching the second anniversary of Russia’s illegal aggression against Ukraine, we are witnessing a fatigue in the West to further bankroll Ukraine. From that perspective, seizing Russian assets that are already frozen in various Western countries, and possibly amount to 300 billion US dollar, may be an attractive proposition.

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In the fourth post in the Renforce Blog Series on the Foreign Subsidies Regulation, Dionysios Pelekis looks at the notion of a “subsidy” in relation to the notion of State aid, and discusses the extraterritorial fiscal implications of the Regulation. Taxation, and the ability to carry out economic, social, and industrial policy via the tax system, is a central aspect of sovereignty. However, due to the width of the notion of a subsidy, and to the scope of the Regulation, this new instrument seems capable of affecting the tax affairs of third countries. 

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The European Union (EU) has taken a significant step in addressing the challenges posed by foreign subsidies through the introduction of the Foreign Subsidies Regulation (FSR). The FSR, which applies from today, fills the void that existed between competition and state aid law, introducing an interdisciplinary approach to market governance. In this blogpost, the third in a special series on the FSR, Jasper Sluijs navigates some of the key aspects of this regulation and their potential consequences for EU competition law.

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In the second post in a Renforce special series on the Foreign Subsidies Regulation (FSR), Thomas Verellen looks at the regulation – which applies as of today – from the angle of democratic accountability. In response to geopolitical unrest, the global expansion of state capitalism, and the climate crisis, the EU has significantly strengthened the European Commission’s unilateral trade policy toolbox. How the Commission can be held democratically accountable as it starts to yield its newfound powers, he argues, should be top of mind for everybody concerned about the democratic credentials of the European Union. The FSR cannot be seen in isolation from this broader context.

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In this piece, the five-part RENFORCE blog series on the new Foreign Subsidies Regulation (FSR) is introduced by Urszula Jaremba.

The FSR – adopted in December 2022, and due to enter into force next week – is an extraordinary piece of EU legislation. Whereas its primary goal is to address distortions on the internal market brought on by subsidies granted by non-EU governments to undertakings active in the EU, the new rules interact and intersect with various EU regulatory regimes in the areas of antitrust, public procurement, and Common Commercial Policy. At the same time, under this novel regulatory regime, the European Commission is designated new, extensive and exclusive enforcement powers which, in turn, give rise to various questions of institutional and constitutional nature pertaining to the democratic foundations of the European Union.

Whereas this blog post offers a general introduction to this new and fascinating regulatory regime and its main features, other authors (details below) will shed light on the FSR from the perspective of their own academic disciplines.

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The functioning of technologies largely relies on standards – technical specifications that ensure that devices, systems and networks “talk” to each other. Due to the rapid pace of digital development, standards are increasingly assuming regulatory, economic and societal roles. How do these standards come to being? How, if at all, can their increasing regulatory function be legitimized? And what is their role in the current legal order? In her new book, Olia Kanevskaia attempts to provide answers to these and many other legal questions arising around ICT standardization.

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For Cedric Ryngaert, there are limits to the duty to freeze assets of persons listed under the EU sanctions regime against Russia. In particular, he approves of a recent decision of the District Court of Amsterdam, which held that a listed shareholder in a Dutch corporation should not be barred from voting regarding matters of corporate governance. He argues that such voting need not result in funds being transferred to Russia, which could be used to fund the war in Ukraine. Still, he believes that the Court of Justice of the EU may want to give more guidance on the matter on the basis of a preliminary ruling.

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In its recent judgments in bpost and Nordzucker, the CJEU held – in essence – that to prevent a violation of the ne bis in idem guarantee in Article 50 of the Charter of Fundamental Rights of the European Union, public authorities need to cooperate and coordinate their punitive enforcement actions, also when they are active in different policy areas or in other jurisdictions. According to Michiel Luchtman, the paradoxical result seems to be that to prevent one fundamental right from being violated, it is necessary to accept (sometimes intrusive) interferences with other rights. Has the Court now entered a slippery slope, eliminating fundamental rights barriers, to promote the effective enforcement of EU law? And if so, at the expense of what?

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The EU has responded relatively fiercely to Russia’s military aggression, with the Council’s decision to deliver weapons to Ukraine even coined a ‘watershed moment’ in European integration. The EU’s involvement in the military domain is expanding rapidly. In this blogpost, Nathan Meershoek argues that the EU’s engagement should not, however, be considered ‘new’ or fundamentally different from previous defence policies. EU defence policy and military procurement regulation should, he insists, be understood and further developed as a reinforcement of national sovereignty and an addition to NATO cooperation rather than their replacement.

The post is the second in a series drawing on a RENFORCE expert seminar on the EU’s response to the war in Ukraine, held online on 8^th March 2022. Click here to read Dr Salvatore Nicolosi’s take on the EU’s response to the migratory flow from Ukraine, and stay tuned to RENFORCE Blog for further analysis of the EU’s neighbourhood policies and Ukraine, the EU’s economic sanctions against Russia and the Ukraine war in the media.

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