The Helms-Burton Blocking Statute of the European Union

According to European Community ( EC ) law, the initiative for legislation lies with the Commission of the European Communities (“Commission”). Therefore, on July 31, 1996, the Commission submitted to the Council of the European Union a “proposal for a Council regulation protecting against the effects of the application of certain legislation of certain third countries, and actions based thereon or resulting therefrom.” After long and intensive discussions by the Committee of Permanent Representatives of the Member States (“COREPER”) and at the ministerial level, which proved to be difficult due to political and legal reasons, the Council, during its October 28, 1996 session, arrived at a political agreement in Council Regulation 2771/96 (“Regulation”). The Regulation aimed to “protect[ ] against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom.” The Council based this Regulation on Articles 73c, 113, and 235 of the Treaty Establishing the European Community (“EC Treaty”). The Council believed that this piece of Community legislation did not cover all areas of activities that needed protection, and, therefore, the Council also adopted a Joint Action based on Articles J.3 and K.3 of the Treaty on European Union (“TEU”). The official adoption of this Regulation and of this Joint Action by the Council took place on November 25, 1996 after legal linguistic experts had finalized the legal texts. Part I of this Essay sets out the content of these European Union acts. Part II analyzes the legal problems which occurred during the Council deliberations in relation to Community and EU law