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The EU’s struggles with its new human rights regime

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As the UN High Commissioner for Human Rights Michelle Bachelet condemned Iran for the execution of regime critic Ruhollah Zam (pictured), calls for punishing human rights violations in a more effective manner are once again growing louder. In light of this, the EU’s adoption of its long-anticipated new global human rights sanctions regime is a welcome step in global politics – and for the EU itself, who hitherto had to take criticism over its lack of a Magnitsky-style human rights regime to punish human rights violators around the globe, writes Louis Auge.

While the EU’s regime drew inspiration from the American system, Brussels was wise not to create a carbon copy of the Magnitsky Act. After all, the Act has come under fire for several legal shortfalls that are seen as human rights violations in their own right. These are centring around its vague selection criteria, lack of due process and, following from this, abuse for political purposes by the US administration – all of which have thrown the validity of the Magnitsky Act as a tool for human rights enforcement into doubt.

Still, even if the EU has managed to create a legislative mechanism that is less arbitrary than Washington’s, important questions remain the bloc will need to address if it seeks to make its sanctions regime an effective instrument in the fight against human rights abuses – without making it a human right issue itself.

Guaranteeing due process

The EU now possesses “a framework that will allow it to target individuals, entities and bodies… responsible for, involved in or associated with serious human rights violations and abuses worldwide, no matter where they occurred.” In this stated ambition it broadly mirrors Magnitsky, and upon closer inspection, has some of the same consequences as well, whether this was intended or not.

Just like the Magnitsky Act, the EU regime provides the legal legitimacy to freeze all funds, assets and other economic resources associated with the targeted individual. The asset freezing can notably be extended to include “non-designated entities” as well as to individuals merely “associated” with the sanctions targets. In other words, the degree of collateral damage arising from EU sanctions can be much more extensive than anticipated, especially considering that the emphasis on targeting individuals was a deliberate choice by Brussels precisely to limit damage beyond the sanctioned individual itself.

This ability to cast the net wide has serious consequences for the targeted individual. If the consequences of the American sanctions regime are a lesson, then the freezing of financial resources makes finding legal representation practically impossible. The adverse effects are only exacerbated given the European Commission’s priority of recent years to elevate the Euro’s standing in global affairs relative to the US Dollar. A response to the extraterritoriality of US sanctions, strengthening the Euro could ironically increase the impact of the European sanctions regime outside the external market – making them effectively extraterritorial in nature.

It’s obvious that these conditions have a serious impact on due process under the EU sanctions regime. Much would already be improved over the Magnitsky Act if the EU were to ensure that the right to defence is upheld, a notion which the European Court of Justice emphasised in a seminal 2008 ruling which stipulated that “the rights of the defence, in particular the right to be heard, and the right to effective judicial review of those rights” need to be respected. It’s evident that Brussels has, if unwittingly, created circumstances that contradict this requirement. Indeed, previous EU sanctions regimes have been notorious for breaching this fundamental right, as can be readily determined by the numerous annulments of counter-terrorist and country sanctions imposed by the EU in the past.

Guilt and innocence 

A closely related issue fraud with uncertainties concerns the listing criteria and the provision of evidence upon which listing decisions are based. The European regime is not governed by an independent body for recommending sanctions, and no objective, uniform set of criteria exists to decide when to apply them. Defining clear and distinct criteria is the responsibility of member states but thus far this has only been done in the context of the EU’s horizontal, that is non-targeted, sanctions legislation.

This gap in the context of the new sanctions regime leaves a lot of room for arbitrary agenda-setting, particularly when the information member states rely on to draw up specific criteria is already tainted by political bias. Civil society organizations like NGOs do not have the power to directly suggest sanctions, as they do in the US, which removes a vector of politicisation from the sanctions process, at least on paper. However, considering the power some NGOs wield in public discourses and influencing political decision-making at the highest level, particularly in countries like Germany, there is a real danger that criteria will be drawn up with pre-conceived notions of guilt in mind.

As such, Brussels could well be tempted to swiftly assign culpability, mirroring the Magnitsky Act’s lose framework where the US treasury can cite “cause to believe” as sufficient to justify a listing. Why that’s problematic becomes clear not only by the fact that the target has little recourse to defend itself, but also in light of the far-reaching effects the sanctions have on the individual’s life.

Good intentions are not everything

Sanctions are, by nature, long-term restrictions, which should not be imposed lightly and therefore require irrefutable proof before doing so. The standard of what constitutes legitimate evidence to justify asset freezes and other quasi-permanent punitive measures should be high and is at the core of whether sanctions are just and in line with European and international human rights law – especially because, in reality, sanctions are penalties intended as an alternative to trial.

What does all of this mean for the EU? Many questions need to be answered and details resolved before the bloc’s new sanction regime is being applied for the first time. Member states have not yet proposed any entities for placing under sanctions, so there’s time to tackle these important issues. Brussels has tried hard to avoid replicating the Magnitsky Act, but more needs to be done to ensure its new sanctions regime is truly a worthy addition to the human rights toolbox rather than one of its problems.

Czech Republic

NextGenerationEU: European Commission endorses Czechia's €7 billion recovery and resilience plan

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The European Commission has today (19 July) adopted a positive assessment of Czechia's recovery and resilience plan. This is an important step towards the EU disbursing €7 billion in grants under the Recovery and Resilience Facility (RRF). This financing will support the implementation of the crucial investment and reform measures outlined in Czechia's recovery and resilience plan. It will play a key role in helping Czechia emerge stronger from the COVID-19 pandemic.

The RRF is at the heart of NextGenerationEU which will provide €800bn (in current prices) to support investments and reforms across the EU. The Czech plan forms part of an unprecedented co-ordinated EU response to the COVID-19 crisis, to address common European challenges by embracing the green and digital transitions, to strengthen economic and social resilience and the cohesion of the Single Market.

The Commission assessed Czechia's plan based on the criteria set out in the RRF Regulation. The Commission's analysis considered, in particular, whether the investments and reforms set out in Czechia's plan support the green and digital transitions; contribute to effectively addressing challenges identified in the European Semester; and strengthen its growth potential, job creation and economic and social resilience.

Securing Czechia's green and digital transition  

The Commission's assessment of Czechia's plan finds that it devotes 42% of its total allocation to measures that support climate objectives. The plan includes investments in renewable energy, the modernisation of district heating distribution networks, the replacement of coal-fired boilers and improving the energy efficiency of residential and public buildings. The plan also includes measures for nature protection and water management as well as investment in sustainable mobility.

The Commission's assessment of Czechia's plan finds that it devotes 22% of its total allocation to measures that support the digital transition. The plan provides for investments in digital infrastructure, the digitalization of public administration, including the areas of health, justice and the administration of construction permits. It promotes the digitalisation of businesses and digital projects in the cultural and creative sectors. The plan also includes measures to improve digital skills at all levels, as part of the education system and through dedicated upskilling and reskilling programmes.

Reinforcing Czechia's economic and social resilience

The Commission considers that Czechia's plan effectively addresses all or a significant subset of the economic and social challenges outlined in the country-specific recommendations addressed to Czechia by the Council in the European Semester in 2019 and in 2020.

The plan provides for measures to tackle the need for investment in energy efficiency and renewable energy sources, sustainable transport and digital infrastructure. Several measures aim at addressing the need to foster digital skills, improve the quality and inclusiveness of education, and to increase the availability of childcare facilities. The plan also provides for improving the business environment, mainly through extensive e-government measures, a reform of the procedures of granting construction permits and anti-corruption measures. Challenges in the area of R&D shall be improved by investment geared at strengthening public-private cooperation and financial and non-financial support to innovative firms.

The plan represents a comprehensive and adequately balanced response to Czechia's economic and social situation, thereby contributing appropriately to all six pillars referred to in the RRF Regulation.

Supporting flagship investments and reform projects

The Czech plan proposes projects in all seven European flagship areas. These are specific investment projects which address issues that are common to all member states in areas that create jobs and growth and are needed for the twin transition. For instance, Czechia has proposed €1.4bn to support the energy efficiency renovation of buildings and €500 million to boost digital skills through education and investments in upskilling and reskilling programmes for the entire labour force.  

The Commission's assessment finds that no measure included in the plan does any significant harm to the environment, in line with the requirements laid out in the RRF Regulation.

The arrangements proposed in the recovery and resilience plan in relation to control systems are adequate to prevent, detect and correct corruption, fraud and conflicts of interests relating to the use of funds. The arrangements are also expected to effectively avoid double funding under that Regulation and other Union programmes. These control systems are complemented by additional audit and control measures contained in the Commission's proposal for a Council Implementing Decision as milestones. These milestones must be fulfilled before Czechia presents its first payment request to the Commission.

President Ursula von der Leyen said: “Today, the European Commission has decided to give its green light to Czechia's recovery and resilience plan. This plan will play a crucial role in supporting a shift towards a greener and more digital future for Czechia. Measures that improve energy efficiency, digitalize public administration and deter the misuse of public funds are exactly in line with the objectives of NextGenerationEU. I also welcome the strong emphasis the plan places on strengthening the resilience of Czechia's health-care system to prepare it for future challenges. We will stand with you every step of the way to ensure that the plan is fully implemented.

Economy Commissioner Paolo Gentiloni said: “Czechia's recovery and resilience plan will provide a strong boost to the country's efforts to get back its feet after the economic shock caused the pandemic. The €7bn in NextGenerationEU funds that will flow to Czechia over the next five years will support a wide-ranging programme of reforms and investments to build a more sustainable and competitive economy. They include very sizeable investments in building renovation, clean energy and sustainable mobility, as well as measures to boost digital infrastructure and skills and the digitalisation of public services. The business environment will benefit from the promotion of e-government and anti-corruption measures. The plan will also support improvements in healthcare, including reinforced cancer prevention and rehabilitation care.”

Next steps

The Commission has today adopted a proposal for a Council Implementing Decision to provide €7bn in grants to Czechia under the RRF. The Council will now have, as a rule, four weeks to adopt the Commission's proposal.

The Council's approval of the plan would allow for the disbursement of €910m to Czechia in pre-financing. This represents 13% of the total amount allocated to Czechia.

An Economy that Works for People Executive Vice President Valdis Dombrovskis said: “This plan will put Czechia on the path to recovery and boost its economic growth as Europe gears up for the green and digital transitions. Czechia intends to invest in renewable energy and sustainable transport, while improving the energy efficiency of buildings. It aims to roll out greater digital connectivity across the country, promote digital education and skills, and digitalize many of its public services. And it places a welcome focus on improving the business environment and justice system, backed by measures to fight corruption and promote e-government – all in a balanced response to the Czech economic and social situation. Once put properly into practice, this plan will help to put Czechia on a sound footing for the future.”

The Commission will authorize further disbursements based on the satisfactory fulfilment of the milestones and targets outlined in the Council Implementing Decision, reflecting progress on the implementation of the investments and reforms. 

More information

Questions and answers: European Commission endorses Czechia's recovery and resilience plan

Recovery and Resilience Facility: Questions and answers

Factsheet on Czechia's recovery and resilience plan

Proposal for a Council Implementing Decision on the approval of the assessment of the recovery and resilience plan for Czechia

Annex to the Proposal for a Council Implementing Decision on the approval of the assessment of the recovery and resilience plan for Czechia

Staff-working document accompanying the proposal for a Council Implementing Decision

Recovery and Resilience Facility

Recovery and Resilience Facility Regulation

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Belgium

Death toll rises to 170 in Germany and Belgium floods

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The death toll in devastating flooding in western Germany and Belgium rose to at least 170 on Saturday (17 July) after burst rivers and flash floods this week collapsed houses and ripped up roads and power lines, write Petra Wischgoll,
David Sahl, Matthias Inverardi in Duesseldorf, Philip Blenkinsop in Brussels, Christoph Steitz in Frankfurt and Bart Meijer in Amsterdam.

Some 143 people died in the flooding in Germany's worst natural disaster in more than half a century. That included about 98 in the Ahrweiler district south of Cologne, according to police.

Hundreds of people were still missing or unreachable as several areas were inaccessible due to high water levels while communication in some places was still down.

Residents and business owners struggled to pick up the pieces in battered towns.

"Everything is completely destroyed. You don't recognise the scenery," said Michael Lang, owner of a wine shop in the town of Bad Neuenahr-Ahrweiler in Ahrweiler, fighting back tears.

German President Frank-Walter Steinmeier visited Erftstadt in the state of North Rhine-Westphalia, where the disaster killed at least 45 people.

"We mourn with those that have lost friends, acquaintances, family members," he said. "Their fate is ripping our hearts apart."

Around 700 residents were evacuated late on Friday after a dam broke in the town of Wassenberg near Cologne, authorities said.

But Wassenberg mayor Marcel Maurer said water levels had been stabilising since the night. "It's too early to give the all-clear but we are cautiously optimistic," he said.

The Steinbachtal dam in western Germany, however, remained at risk of breaching, authorities said after some 4,500 people were evacuated from homes downstream.

Steinmeier said it would take weeks before the full damage, expected to require several billions of euros in reconstruction funds, could be assessed.

Armin Laschet, state premier of North Rhine-Westphalia and the ruling CDU party's candidate in September's general election, said he would speak to Finance Minister Olaf Scholz in the coming days about financial support.

Chancellor Angela Merkel was expected to travel on Sunday to Rhineland Palatinate, the state that is home to the devastated village of Schuld.

Members of the Bundeswehr forces, surrounded by partially submerged cars, wade through the flood water following heavy rainfalls in Erftstadt-Blessem, Germany, July 17, 2021. REUTERS/Thilo Schmuelgen
Austrian rescue team members use their boats as they go through an area affected by floods, following heavy rainfalls, in Pepinster, Belgium, July 16, 2021. REUTERS/Yves Herman

In Belgium, the death toll rose to 27, according to the national crisis centre, which is co-ordinating the relief operation there.

It added that 103 people were "missing or unreachable". Some were likely unreachable because they could not recharge mobile phones or were in hospital without identity papers, the centre said.

Over the past several days the floods, which have mostly hit the German states of Rhineland Palatinate and North Rhine-Westphalia and eastern Belgium, have cut off entire communities from power and communications.

RWE (RWEG.DE), Germany's largest power producer, said on Saturday its opencast mine in Inden and the Weisweiler coal-fired power plant were massively affected, adding that the plant was running at lower capacity after the situation stabilized.

In the southern Belgian provinces of Luxembourg and Namur, authorities rushed to supply drinking water to households.

Flood water levels slowly fell in the worst hit parts of Belgium, allowing residents to sort through damaged possessions. Prime Minister Alexander De Croo and European Commission President Ursula von der Leyen visited some areas on Saturday afternoon.

Belgian rail network operator Infrabel published plans of repairs to lines, some of which would be back in service only at the very end of August.

Emergency services in the Netherlands also remained on high alert as overflowing rivers threatened towns and villages throughout the southern province of Limburg.

Tens of thousands of residents in the region have been evacuated in the past two days, while soldiers, fire brigades and volunteers worked frantically throughout Friday night (16 July) to enforce dykes and prevent flooding.

The Dutch have so far escaped disaster on the scale of its neighbours, and as of Saturday morning no casualties had been reported.

Scientists have long said that climate change will lead to heavier downpours. But determining its role in these relentless rainfalls will take at least several weeks to research, scientists said on Friday.

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Czech Republic

NextGenerationEU: President von der Leyen in Czechia to present the Commission's assessment of the national recovery plan

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Today (19 July), Commission President Ursula von der Leyen (pictured) will be in Czechia to present the Commission's assessment on the national recovery and resilience plan under NextGenerationEU. On Monday morning, President von der Leyen will travel to Prague to meet Prime Minister Andrej Babiš, together with Vice-President Věra Jourová. She will also visit the Prague State Opera and the State Opera and National Museum, and discuss investments in energy efficiency. 

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