Evan McMahon, LL.M. Graduate at Dublin City University
Judicial review in the European Union (EU) serves as a cornerstone of the EU’s constitutional architecture. The EU treaties, in particular, the TEU (Treaty of the European Union) and the TFEU (Treaty of the Functioning of the European Union), outline this judicial review power. The fundamental article outlining the Court of Justice’s (CJEU) jurisdiction is that of Article 263 TFEU. The recent case T-235/25 in the area of the EU’s sanctioning power highlights two key elements of the judicial review function. Firstly, being Ms Pumpyanskaya in this case was a non-privileged applicant, which carries a high threshold to pass to have your action heard. Secondly, Article 275(1) TFEU expressly outlines that the Court of Justice of the European Union has no express jurisdiction to review provisions or elements of legislation that relate to the CFSP (Common Foreign and Security Policy). Increasingly it has become clear that this express lack of jurisdiction is being eroded by the CJEU through recent judgments, and the case of T-235/25 reinforces this conclusion.
The case of Galina Evgenyevna Pumpyanskaya v Council concerns EU sanctions implemented after the Russian invasion of Ukraine. These sanctions, as per Decision 2014/145 as amended by Decision 2022/329 targeted the ‘funds and economic resources’ of all legal persons, both natural and corporate, that provided a substantial source of revenue to the Russian Federation. Ms Pumpyanskaya was listed under the EU sanctions regime because her husband, Dmitry Pumpyanskiy, was a Russian businessman who was identified as a leading businessperson contributing significantly to the Russian economy. In the recent CJEU case T-541/24, Mr Pumpyanskiy had his name removed from the EU sanctions list.
Before the General Court, counsel for Ms Pumpyanskaya argued that due to Ms Pumpyanskaya’s separation from her husband, she was no longer dependent on him; her counsel highlighted her financial independence through the sale of her shares in Group Sinara. The EU Council argued that, due to her status as a housewife and her residing in Dubai, she must still rely on her husband to fund her lifestyle. The General Court made it clear that from Mr Pumpyanskiy’s case, his inclusion on the sanctions list was an error of assessment then therefore stated that ‘the applicant’s name on the lists at issue by means of the contested acts, since the merits of that inclusion are founded on the purported benefit derived by her from a person wrongly classified as a ‘[leading] businessperson operating in Russia’ (see here). The court on the first plea ordered that Ms Pumpyanskaya’s name on the sanction list was an error of assessment and ordered the removal of her name.
The ruling by the court in the above case continues to follow the pattern established by the CJEU recently in cases concerning the CFSP. This concept is what is understood as judicial empowerment or judicial activism. In the cases of C-29/22 P a KS and KD v Council & Others and C-44/22 P Commission v KS and Others, the Court of Justice outlined that the CJEU lacks the jurisdiction to exercise judicial review over actions directly related to the CFSP. But the Court has interpreted Article 19 TEU as granting the CJEU jurisdiction of general scope; therefore, the court has concluded that the principles of the EU legal order do apply to the CFSP and cannot be exempt from them. The CJEU in this case paid particular attention to the rule of law and fundamental rights, and the importance of the CFSP being in line with both.
Examining the judgments of the above mentioned cases, it has become clear that the recent judgments of the CJEU in relation to the CFSP lend to this understanding of judicial empowerment. Given that the CJEU is charged with the interpretation of the Treaties, it is the sole prerogative of the CJEU to interpret the treaties as narrowly or as broadly as it sees fit. Academics such as Daniel Keleman have concluded that the power fragmentation in the EU encourages judicial empowerment, and as such, it is fair to conclude that this power fragmentation gives the CJEU the opportunity, by way of judicial review, to expand or empower itself.
On this basis, it becomes clear that in the ever-changing world, and especially the rapidly evolving nature of foreign and security policy, the EU may have to employ its sanctions arsenal more and more often. Which, as a result, will lead to further cases being brought before the CJEU. The question is whether the CJEU will continue the above pattern of judgments and continue the erosion of the express lack of jurisdiction to review the CFSP, or will we see the CJEU moderate its approach?
