In a hard-hitting new legal opinion Prof. Dr. Ninon Colneric – a former EC Court of Justice[1] judge – and Professor of International Law at the University of Angers Prof. Dr. Alina Miron, have said that ‘the EU has crossed the Rubicon’ with the restrictions placed on freedom of expression in the EU by the EU’s new ‘disinformation’ sanctions regime.

In the legal opinion, commissioned by MEPs Michael von der Schulenburg and Ruth Firmenich, and to be presented at an event in the European Parliament next Tuesday, 11 November, they write, ‘With these measures restricting freedom of expression the EU [is] limiting a freedom that has been quintessential to its identity.’

The new regime has been used to sanction 47 individuals to date, including a number of citizens of the EU. As noted in the report, being sanctioned ‘affects the entire existence of listed persons’, most particularly when they are EU citizens sanctioned by the EU. Being sanctioned is a kind of ‘mort civile’ (‘civil death’)  – assets are frozen and access to banking effectively cut off; it is prohibited to make funds or economic resources available either directly or indirectly to sanctioned individuals, rendering effectively nil their ability to work or conduct a business in order to generate income; and they are prohibited from travelling within the European Union beyond the state where they have their residence.

The authors point out numerous aspects of the EU’s new sanctions framework that are unlawful under EU law, as well as a wide range of problematic aspects as regards compliance with fundamental rights requirements under law. They write that the concepts employed in the regime, such as ‘information manipulation and interference’ ‘are broad enough to grant virtually unfettered discretion to the Council’ in making decisions to sanction persons under the regime. Such ‘unfettered discretion’ obviously raises the frightening spectre of politically motivated targeting of individuals under the framework.

Prof. Dr. Colneric and Prof. Dr. Miron conclude that the denial of the right to be heard to persons charged with disinformation before the decision to sanction them is taken is disproportionate, and therefore unlawful. They write that ‘the damage caused to one of the pillars of democracy [freedom of expression] is disproportionate to the aim of fighting disinformation,’ and conclude that the measures are in breach of Article 11 of the EU’s Charter of Fundamental Rights. In addition, the restrictions on the freedom of movement of EU citizens sanctioned under the regime are unlawful, and necessary provisions on legal safeguards are lacking.

The authors’ conclusions regarding the ‘chilling effect’ of the new sanctions regime on journalists and others are stark. They write that the regime ‘makes it risky to touch upon topics which are the object of public controversy because information might be labelled as disinformation. The sanctions regime is…liable to deter journalists and others from exercising their right to freedom of expression and information when it comes to certain topics.’

Say Michael von der Schulenburg MEP and Ruth Firmenich MEP: ‘The EU’s “disinformation” sanctions regime must be challenged, given its dangerous and thoroughgoing attack on the right to freedom of expression, as well as the numerous breaches of EU law that it rests upon. The European Parliament must act, and seek to have this dangerous new framework annulled.’

[1] Court of Justice of the European Communities, former name of Court of Justice of the European Union