HP of Satoshi Iriinafuku - EU・ECの制裁

安保理決議の実施と司法救済
　～国際テロ対策に関する事例～

　従来のEC条約第60条および第301条に基づき、ECは、第3国だけではなく、第3国とは関係のない個人に対しても制裁を発動することができるかどうかについて、両規定は定めておらず、解釈に争いがあった（詳しくはこちら）。この点を明らかにするため、2004年10月に締結された欧州憲法条約第III-160条および第III‐322条は、EU（従来のEC）の権限を明瞭に定めている。

　2007年12月、EU加盟国は欧州憲法条約の発効を断念し、リスボン条約を締結した。新条約に基づき、EC条約の名称は、EUの機能に関する条約と改められているが、欧州憲法条約の規定を承継し、個人に対する制裁の発動権限が明瞭に定められている（第61H条（now 第75条※）および第188K条（now 第215条※））。

現行EC条約		欧州憲法条約		EUの機能に関する条約
第60条	⇒	第III-160条	⇒	第61H条 now 第75条※
第301条	⇒	第III‐322条	⇒	第188K条 now 第215条※

※	リスボン条約に基づき、EU条約やEUの機能に関する条約が書き改められた際、条文数が変更されている。

　従来のEC条約第60条と異なり、EUの機能に関する条約第61H条（第75条）第1項は、欧州議会にも立法権限を与えている。また、同議会とEU理事会によって制定される第2次法として「規則」を明示している。他方、現行第301条第1項は、欧州委員会に発議権を与えているが、新第188K条（第215条）第1項は、共通外交・安全保障政策の上級代表と欧州委員会が共同で提案すると定める。

　なお、リスボン条約には宣言（25. Declaration）が付され、制裁の対象となる個人や組織の権利保護を十分に考慮しなければならない旨が定められた。また、第61H条（now 第75条）に関し、イギリス政府も宣言（65. Declaration）を出している。

現行EC条約

Article 60

欧州憲法条約

Article III-160

EUの機能に関する条約

Article 61 H
now Article 75

1.	If, in the cases envisaged in Article 301, action by the Community is deemed necessary, the Council may, in accordance with the procedure provided for in Article 301, take the necessary urgent measures on the movement of capital and on payments as regards the third countries concerned.

Where necessary to achieve the objectives set out in Article III-257, as regards preventing and combating terrorism and related activities, European laws shall define a framework for administrative measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-State entities.

Where necessary to achieve the objectives set out in Article 61 〔now Article 67〕, as regards preventing and combating terrorism and related activities, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall define a framework for administrative measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-State entities.　

Without prejudice to Article 297 and as long as the Council has not taken measures pursuant to paragraph 1, a Member State may, for serious political reasons and on grounds of urgency, take unilateral measures against a third country with regard to capital movements and payments. The Commission and the other Member States shall be informed of such measures by the date of their entry into force at the latest.

The Council may, acting by a qualified majority on a proposal from the Commission, decide that the Member State concerned shall amend or abolish such measures. The President of the Council shall inform the European Parliament of any such decision taken by the Council.

The Council, on a proposal from the Commission, shall adopt European regulations or European decisions in order to implement the European laws referred to in the first paragraph.

The acts referred to in this Article shall include necessary provisions on legal safeguards.

The Council, on a proposal from the Commission, shall adopt measures to implement the framework referred to in the first paragraph.　

The acts referred to in this Article shall include necessary provisions on legal safeguards.

Article 301

ARTICLE III-322

Article 188 K
now Article 215条

Where it is provided, in a common position or in a joint action adopted according to the provisions of the Treaty on European Union relating to the common foreign and security policy, for an action by the Community to interrupt or to reduce, in part or completely, economic relations with one or more third countries, the Council shall take the necessary urgent measures. The Council shall act by a qualified majority on a proposal from the Commission.

1.	Where a European decision, adopted in accordance with Chapter II, provides for the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries, the Council, acting by a qualified majority on a joint proposal from the UnionMinister for Foreign Affairs and the Commission, shall adopt the necessary European regulations or decisions. It shall inform the European Parliament thereof.
2.	Where a European decision adopted in accordance with Chapter II so provides, the Council may adopt restrictive measures under the procedure referred to in paragraph 1 against natural or legal persons and groups or non-State entities.
3.	The acts referred to in this Article shall include necessary provisions on legal safeguards.

1.	Where a decision, adopted in accordance with Chapter 2 of Title V of the Treaty on European Union, provides for the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries, the Council, acting by a qualified majority on a joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and the Commission, shall adopt the necessary measures. It shall inform the European Parliament thereof.
2.	Where a decision adopted in accordance with Chapter 2 of Title V of the Treaty on European Union so provides, the Council may adopt restrictive measures under the procedure referred to in paragraph 1 against natural or legal persons and groups or non-State entities.
3.	The acts referred to in this Article shall include necessary provisions on legal safeguards.

CHAPTER IV

AREA OF FREEDOM, SECURITY AND JUSTICE

SECTION 1

GENERAL PROVISIONS

ARTICLE III-257

Title IV

AREA OF FREEDOM, SECURITY AND JUSTICE

Chapter 1

General provisions

Article 61

now Article 67

1.	The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.
2.	It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. For the purpose of this Chapter, stateless persons shall be treated as third-country nationals.
3.	The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws.
4.	The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.

1.	The Union shall constitute an area of freedom, security and justice with respect for　fundamental rights and the　different legal systems and　traditions of the Member　States.
2.	It shall ensure the absence of internal border controls for　persons and shall frame a　common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country　nationals. For the purpose of this　Title, stateless persons shall be treated as third-country nationals.
3.	The Union shall endeavour to ensure a high level of security through　measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws.
4.	The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.

　
25. Declaration on Articles 75 and 215
of the Treaty on the Functioning of the European Union

The Conference recalls that the respect for fundamental rights and freedoms implies, in particular, that proper attention is given to the protection and observance of the due process rights of the individuals or entities concerned. For this purpose and in order to guarantee a thorough judicial review of decisions subjecting an individual or entity to restrictive measures, such decisions must be based on clear and distinct criteria. These criteria should be tailored to the specifics of each restrictive measure.

65. Declaration by the United Kingdom of Great Britain and Northern Ireland
on Article 75 of the Treaty on the Functioning of the European Union

The United Kingdom fully supports robust action with regard to adopting financial sanctions designed to prevent and combat terrorism and related activities. Therefore, the United Kingdom declares that it intends to exercise its right under Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice to take part in the adoption of all proposals made under Article 75 of the Treaty on the Functioning of the European Union.

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