COUNCIL REGULATION (EU) No 833/2014
of 31 July 2014
concerning restrictive measures in view of Russia's actions destabilising the situation in Ukraine
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 215 thereof,
Having regard to Council Decision 2014/512/CFSP concerning restrictive measures in view of Russia's actions destabilising the situation in Ukraine (1),
Having regard to the joint proposal of the High Representative of the Union for Foreign Affairs and Security Policy and of the European Commission,
Whereas:
(1)
Council Regulation (EU) No 269/2014 (2) gives effect to certain measures provided for in Decision 2014/145/CFSP (3). Those measures comprise the freezing of funds and economic resources of certain natural and legal persons, entities and bodies and restrictions on certain investments, as a response to the illegal annexation of Crimea and Sevastopol.
(2)
On 22 July 2014, the Council concluded that should Russia fail to respond to the demands formulated in the European Council conclusions of 27 June 2014 and in its own conclusions of 22 July, it would be ready to introduce without delay a package of further significant restrictive measures. It is therefore considered appropriate to apply additional restrictive measures with a view to increasing the costs of Russia's actions to undermine Ukraine's territorial integrity, sovereignty and independence and to promoting a peaceful settlement of the crisis. These measures will be kept under review and may be suspended or withdrawn, or be supplemented by other restrictive measures, in light of developments on the ground.
(3)
It is appropriate to apply restrictions on exports of certain dual-use goods and technology, as laid down in Council Regulation (EC) No 428/2009 (4), and on the provision of related services and to apply restrictions on certain services related to the supply of arms and military equipment, if an embargo on such goods is applied by the Member States. This prohibition should not affect the exports of dual-use goods and technology, including for aeronautics and for the space industry, for non-military use or for a non-military end-user.
(4)
It is also appropriate to apply restrictions on the sale, supply, transfer or export, directly or indirectly, of certain technologies for the oil industry in Russia in the form of a prior authorisation requirement.
(5)
It is also appropriate to apply restrictions on access to the capital market for certain financial institutions, excluding Russia-based institutions with international status established by intergovernmental agreements with Russia as one of the shareholders. Other financial services such as deposit business, payment services and loans to or from the institutions covered by this Regulation, other than those referred to in Article 5, are not covered by this Regulation.
(6)
These measures fall within the scope of the Treaty and, therefore, in particular with a view to ensuring their uniform application in all Member States, regulatory action at the level of the Union is necessary.
(7)
In order to ensure that the measures provided for in this Regulation are effective, it should enter into force immediately,
HAS ADOPTED THIS REGULATION:
Article 1
For the purposes of this Regulation, the following definitions apply:
(a)
‘dual-use goods and technology’ means the items listed in Annex I to Regulation (EC) No 428/2009;
(b)
‘competent authorities’ means the competent authorities of the Member States as identified on the websites listed in Annex I;
(c)
‘technical assistance’ means any technical support related to repairs, development, manufacture, assembly, testing, maintenance, or any other technical service, and may take forms such as instruction, advice, training, transmission of working knowledge or skills or consulting services; including verbal forms of assistance;
(d)
‘brokering services’ means:
(i)
the negotiation or arrangement of transactions for the purchase, sale or supply of goods and technology or of financial and technical services, including from a third country to any other third country, or
(ii)
the selling or buying of goods and technology or of financial and technical services, including where they are located in third countries for their transfer to another third country;
(e)
‘brokering’ means the following services and activities:
(i)
reception and transmission of orders in relation to one or more financial instruments,
(ii)
execution of orders on behalf of clients,
(iii)
dealing on own account,
(iv)
portfolio management,
(v)
investment advice,
(vi)
underwriting of financial instruments and/or placing of financial instruments on a firm commitment basis,
(vii)
placing of financial instruments without a firm commitment basis,
(viii)
any service in relation to the admission to trading on a regulated market or trading on a multilateral trading facility;
(f)
‘transferable securities’ means those classes of securities which are negotiable on the capital market, with the exception of instruments of payment, such as:
(i)
shares in companies and other securities equivalent to shares in companies, partnerships or other entities, and depositary receipts in respect of shares,
(ii)
bonds or other forms of securitised debt, including depositary receipts in respect of such securities,
(iii)
any other securities giving the right to acquire or sell any such transferable securities or giving rise to a cash settlement;
(g)
‘money-market instruments’ means those classes of instruments which are normally dealt in on the money market, such as treasury bills, certificates of deposit and commercial papers and excluding instruments of payment;
(h)
‘credit institution’ means an undertaking the business of which is to take deposits or other repayable funds from the public and to grant credit for its own account;
(i)
‘territory of the Union’ means the territories of the Member States to which the Treaty is applicable, under the conditions laid down in the Treaty, including their airspace.
Article 2
1. It shall be prohibited to sell, supply, transfer or export, directly or indirectly, dual-use goods and technology, whether or not originating in the Union, to any natural or legal person, entity or body in Russia or for use in Russia, if those items are or may be intended, in their entirety or in part, for military use or for a military end-user.
Where the end-user is the Russian military, any dual-use goods and technology procured by it shall be deemed to be for military use.
2. When deciding on requests for authorisations in accordance with Council Regulation (EC) No 428/2009, the competent authorities shall not grant an authorisation for exports to any natural or legal person, entity or body in Russia or for use in Russia, if they have reasonable grounds to believe that the end-user might be a military end-user or that the goods might have a military end-use.
The competent authorities may, however, grant an authorisation where the export concerns the execution of an obligation arising from a contract or an agreement concluded before 1 August 2014.
Exporters shall supply the competent authorities with all relevant information required for their application for an export authorisation.
Article 3
1. A prior authorisation shall be required for the sale, supply, transfer or export, directly or indirectly, of technologies as listed in Annex II, whether or not originating in the Union, to any natural or legal person, entity or body in Russia or in any other country, if such equipment or technology is for use in Russia.
2. For all sales, supplies, transfers or exports for which an authorisation is required under this Article, such authorisation shall be granted by the competent authorities of the Member State where the exporter is established and shall be in accordance with the detailed rules laid down in Article 11 of Regulation (EC) No 428/2009. The authorisation shall be valid throughout the Union.
3. Annex II shall include certain technologies suited to the oil industry for use in deep water oil exploration and production, Arctic oil exploration and production, or shale oil projects in Russia.
4. Exporters shall supply the competent authorities with all relevant information required for their application for an export authorisation.
5. The competent authorities shall not grant any authorisation for any sale, supply, transfer or export of the technologies included in Annex II, if they have reasonable grounds to determine that the sale, supply, transfer or export of the technologies is for projects pertaining to deep water oil exploration and production, Arctic oil exploration and production, or shale oil projects in Russia.
The competent authorities may, however, grant an authorisation where the export concerns the execution of an obligation arising from a contract or an agreement concluded before 1 August 2014.
6. Under the conditions set out in paragraph 5, the competent authorities may annul, suspend, modify or revoke an export authorisation which they have granted.
7. Where a competent authority refuses to grant an authorisation, or annuls, suspends, substantially limits or revokes an authorisation in accordance with paragraphs 5 or 6, the Member State concerned shall notify the other Member States and the Commission thereof and share the relevant information with them, while complying with the provisions concerning the confidentiality of such information in Council Regulation (EC) No 515/97 (5).
8. Before a Member State grants an authorisation in accordance with paragraph 5 for a transaction which is essentially identical to a transaction which is the subject of a still valid denial issued by another Member State or by other Member States under paragraphs 6 and 7, it shall first consult the Member State or States which issued the denial. If, following such consultations, the Member State concerned decides to grant an authorisation, it shall inform the other Member States and the Commission thereof, providing all relevant information to explain the decision.
Article 4
1. It shall be prohibited:
(a)
to provide, directly or indirectly, technical assistance related to the goods and technology listed in the Common Military List (6), or related to the provision, manufacture, maintenance and use of goods included in that list, to any natural or legal person, entity or body in Russia or for use in Russia;
(b)
to provide, directly or indirectly, financing or financial assistance related to the goods and technology listed in the Common Military List, including in particular grants, loans and export credit insurance or guarantee, for any sale, supply, transfer or export of such items, or for any provision of related technical assistance to any natural or legal person, entity or body in Russia or for use in Russia;
(c)
to provide, directly or indirectly, technical assistance or brokering services related to dual-use goods and technology, or related to the provision, manufacture, maintenance and use of such goods or technology, to any natural or legal person, entity or body in Russia or for use in Russia, if the items are or may be intended, in their entirety or in part, for military use or for a military end-user;
(d)
to provide, directly or indirectly, financing or financial assistance related to the dual-use goods and technology, including in particular grants, loans and export credit insurance, for any sale, supply, transfer or export of such items, or for any provision of related technical assistance to any natural or legal person, entity or body in Russia or for use in Russia, if the items are or may be intended, in their entirety or in part, for military use or for a military end-user.
2. The prohibitions in paragraph 1 shall be without prejudice to the execution of an obligation arising from a contract or an agreement concluded before 1 August 2014, and to the provision of assistance necessary to the maintenance and safety of existing capabilities within the EU.
3. The provision of the following shall be subject to an authorisation from the competent authority concerned:
(a)
technical assistance or brokering services related to technologies listed in Annex II and to the provision, manufacture, maintenance and use of those items, directly or indirectly to any natural or legal person, entity or body in Russia or, if such assistance concerns technologies for use in Russia, to any person, entity or body in any other country;
(b)
financing or financial assistance related to technologies referred to in Annex II, including in particular grants, loans and export credit insurance, for any sale, supply, transfer or export of those items, or for any provision of related technical assistance, directly or indirectly, to any natural or legal person, entity or body in Russia or, if such assistance concerns technologies for use in Russia, to any person, entity or body in any other country.
4. Where authorisations are requested pursuant to paragraph 2 of this Article, Article 3, and in particular paragraphs 2 and 5 thereof, shall apply mutatis mutandis.
Article 5
It shall be prohibited to directly or indirectly purchase, sell, provide brokering or assistance in the issuance of, or otherwise deal with transferable securities and money-market instruments with a maturity exceeding 90 days, issued after 1 August 2014 by:
(a)
a major credit institution or other major institution having an explicit mandate to promote competitiveness of the Russian economy, its diversification and encouragement of investment, established in Russia with over 50 % public ownership or control as of 1 August 2014, as listed in Annex III; or
(b)
a legal person, entity or body established outside the Union whose proprietary rights are owned for more than 50 %by an entity listed in Annex III; or
(c)
a legal person, entity or body acting on behalf or at the direction of an entity referred to in point (b) of this paragraph or listed in Annex III.
Article 6
1. The Member States and the Commission shall inform each other of the measures taken under this Regulation and share any other relevant information at their disposal in connection with this Regulation, in particular information:
(a)
in respect of authorisations granted under Article 3;
(b)
in respect of violation and enforcement problems and judgments handed down by national courts.
2. The Member States shall immediately inform each other and the Commission of any other relevant information at their disposal which might affect the effective implementation of this Regulation.
Article 7
The Commission shall be empowered to amend Annex I on the basis of information supplied by Member States.
Article 8
1. Member States shall lay down the rules on penalties applicable to infringements of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.
2. Member States shall notify the rules referred to in paragraph 1 to the Commission without delay after the entry into force of this Regulation and shall notify it of any subsequent amendment.
Article 9
1. Member States shall designate the competent authorities referred to in this Regulation and identify them on the websites listed in Annex I. Member States shall notify the Commission of any changes in the addresses of their websites listed in Annex I.
2. Member States shall notify the Commission of their competent authorities, including the contact details of those competent authorities, without delay after the entry into force of this Regulation, and shall notify it of any subsequent amendment.
3. Where this Regulation sets out a requirement to notify, inform or otherwise communicate with the Commission, the address and other contact details to be used for such communication shall be those indicated in Annex I.
Article 10
Actions by natural or legal persons, entities or bodies shall not give rise to liability of any kind on their part, if they did not know, and had no reasonable cause to suspect, that their actions would infringe the measures set out in this Regulation.
Article 11
1. No claims in connection with any contract or transaction the performance of which has been affected, directly or indirectly, in whole or in part, by the measures imposed under this Regulation, including claims for indemnity or any other claim of this type, such as a claim for compensation or a claim under a guarantee, notably a claim for extension or payment of a bond, guarantee or indemnity, particularly a financial guarantee or financial indemnity, of whatever form, shall be satisfied, if they are made by:
(a)
entities referred to in points (b) or (c) of Article 5, or listed in Annex III;
(b)
any other Russian person, entity or body;
(c)
any person, entity or body acting through or on behalf of one of the persons, entities or bodies referred to in points (a) or (b) of this paragraph.
2. In any proceedings for the enforcement of a claim, the onus of proving that satisfying the claim is not prohibited by paragraph 1 shall be on the person seeking the enforcement of that claim.
3. This Article is without prejudice to the right of the persons, entities and bodies referred to in paragraph 1 to judicial review of the legality of the non-performance of contractual obligations in accordance with this Regulation.
Article 12
It shall be prohibited to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent the prohibitions referred to in Articles 2, 4 and 5, including by acting as a substitute for the entities referred to in Article 5.
Article 13
This Regulation shall apply:
(a)
within the territory of the Union;
(b)
on board any aircraft or any vessel under the jurisdiction of a Member State;
(c)
to any person inside or outside the territory of the Union who is a national of a Member State;
(d)
to any legal person, entity or body, inside or outside the territory of the Union, which is incorporated or constituted under the law of a Member State;
(e)
to any legal person, entity or body in respect of any business done in whole or in part within the Union.
Article 14
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 31 July 2014.