“A blatant and unprecedented violation of fundamental international norms.
» This is how Maria Zakharova, spokesperson for Kremlin diplomacy, described the European project to confiscate frozen Russian assets in the Union.
The Twenty-seven actually agreed at a defense summit this Thursday by proposing to use these funds to support Ukraine.
But this decision raises several questions on the legal level, while Ukraine continues to question the EU on its military needs.
Does the EU have the right to confiscate Russian assets?
In the case of frozen assets, the ownership of securities and fixed assets (bank accounts, savings plans, etc.) does not change.
In other words, Russian assets still belong to Russians.
“Normally, a transfer of property must be decided at the judicial level.
Only the judge can rule, after a procedure incorporating adversarial proceedings,” explains Me Renaud de L’Aigle, lawyer at the Paris bar.
In this specific case, the Union could appropriate frozen Russian assets following a unanimous vote by the EU council, a political decision that moves away from the purely legal framework.
For the specialist lawyer, this would raise “serious questions about respect for the right to private property.
From my point of view, it is very important to have a judicial decision, otherwise, it is a fundamental right which is arbitrarily called into question.
» For comparison, in France, the question of confiscation of Russian assets had already been raised as early as 2022. But this desire came up against national law, with legal projects on the subject still not having come to fruition. due to the complexity of the procedures.
Why only seize a small portion of these funds?
Around 200 billion in Russian assets are currently frozen within the EU, a colossal sum that the leaders of the member states are currently considering only partially using.
According to Ursula von der Leyen, the confiscation would bring in 3 billion euros, corresponding to the interest on the assets.
For lawyer Joris Monin de Flaugergues, it would be “an intelligent in-between allowing us to propose an intermediate measure which affects the right to property in a limited way”.
A way for the Twenty-seven to send a strong signal while moderating their approach.
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If he shares Mr de l'Aigle's position on "a decision which would take an unprecedented step with potentially cataclysmic consequences" with regard to property law, he also notes a mechanism "playing on the passage of time in favor of the EU, since if these revenues are confiscated, this will result in an impoverishment of the Russian entities concerned.
On paper, the European Union would need well over 3 billion euros to continue support for Ukraine and strengthen its defense budget, for which it would be necessary to “spend more and spend better” according to the President of the Commission. .
Does Russia have the means available to respond?
In addition to diplomatic warnings, people targeted by European sanctions can counterattack at the legal level.
“If the Council takes this decision, it is exposed to controls and appeals to challenge the seizure of assets.
We can imagine a risk of annulment before the Court of Justice of the European Union (CJEU), which could consider that these measures are disproportionate,” explains Renaud de L’Aigle.
These appeals could even lead to reimbursement if, in the meantime, the money has been spent by the member states.
In fact, “once a transfer of ownership is recorded, it is a priori definitive”, according to Me Monin de Flaugergues.
“Russia has indeed announced recourse, but this remains a diplomatic position for the moment.
We will have to see in the long term.
» The Kremlin has already warned EU countries “of the damage that such decisions could cause to their economy, their image, their reputation as reliable guarantors of the inviolability of property”, even evoking “banditry” and “theft”.
It remains to be seen whether the Union will go all the way and actually use the frozen assets to finance aid to Ukraine, which would like to benefit in full.