Sanctions tracker – EU agrees eighth sanctions package

On 6 October, the EU agreed its eighth Russia sanctions package (initial details of which were set out in our previous blogpost). The Commission and the Council have both issued press releases in connection with the new measures and the Commission has also published a Q&A on the new measures.

The new sanctions package comprises the following key elements:

• additional asset freeze designations;
• expansion of existing restrictions to the oblasts of Kherson and Zaporizhzhia;
• new export and import restrictions;
• the introduction (in December 2022 / February 2023) of the G7-agreed oil price cap;
• further restrictions relating to Russian state-owned enterprises;
• restrictions on the provision to Russia of certain services; and
• additional measures to deter the circumvention of sanctions.

We summarise the key aspects of each of these below by reference to the new legislation published on 6 October.

Additional asset freeze designations

A further 37 entries have been added to the EU’s Russia-related asset freeze list by Council Implementing Regulation (EU) 2022/1906, which implements Regulation (EU) No 269/2014 (the “Asset Freeze Regulation”).

The new asset freeze targets include those said to be involved in Russia’s occupation, annexation and “referenda” in Donetsk, Luhansk, Kherson and Zaporizhzhia along with individuals and entities from the defence and military sectors and those involved in Russian propaganda efforts. The EU’s asset freeze now applies to a total of 126 individuals and 115 entities (see separate Council press release).

Council Regulation (EU) 2022/1905 (“Regulation 2022/1905”) also amends the available licensing grounds under the Asset Freeze Regulation as follows:

• amending the existing licensing ground in respect of payments to Crimean Sea Ports to provide that a Member State authorising a payment under this ground must inform the other Member States and the Commission; and
• adding additional licensing grounds in respect of the designated persons PJSC Kamaz and the National Settlement Depository.

Kherson and Zaporizhzhia

Council Regulation (EU) 2022/1903 amends Regulation (EU) 2022/263 (the “Donetsk and Luhansk Regulation”) to provide that the existing measures in the Donetsk and Luhansk Regulation which apply to “specified territories” now also apply to Kherson and Zaporizhzhia.

A summary of the measures introduced by the Donetsk and Luhansk Regulation can be found in our previous blogpost.

Export and import restrictions

Council Regulation (EU) 2022/1904 (“Regulation 2022/1904”) amends Regulation (EU) 833/2014 (the “Russia Regulation”) to introduce various new measures, including new trade sanctions. The amendments made by Regulation 2022/1904 came into force on 7 October.

As regards export restrictions, the list of restricted items which may contribute to Russia’s military and technological enhancement, or the development of its defence and security sector has been updated to include certain electronic components and additional chemicals and goods that can be used for capital punishment, torture or other cruel, inhuman or degrading treatment.

Regulation 2022/1904 also introduces a prohibition on the sale, supply, transfer or export of firearms (together with their parts and essential components and ammunition) to or for use in Russia. This prohibition is supported by related prohibitions on the provision of technical assistance, brokering, the provision, manufacture, maintenance and use of those goods, as well as related financing or financial assistance. Firearms and the other restricted products are defined by reference to Annex I of Regulation (EU) No 258/2012.

As regards imports, the existing import restrictions on Russian iron and steel products have been expanded to also include iron and steel products (as listed in Annex XVII to the Russia Regulation) when processed in a third country incorporating iron and steel products originating in Russia. This restriction applies from 30 September 2023 (or from 1 April 2024/1 October 2024 in respect of certain specific products as set out in the amended Article 3g of the Russia Regulation). Article 3g also contains specific import quotas in respect of particular products listed in Annex XVII.

The existing import restrictions on goods which generate significant revenues for Russia (as listed in Annex XXI of the Russia Regulation) have been expanded to include a significant number of additional products including cigarettes, wood pulp and paper, and cosmetics. There is an exemption in respect of these newly listed goods permitting the execution until 8 January 2023 of contracts concluded before 7 October 2022.

Regulation 2022/1904 also makes certain other amendments to existing Russian trade restrictions; we have summarised the key amendments below.

• Annex XI of the Russia Regulation has been amended so as to extend the existing restrictions on aviation and space goods to a number of products, including oils, and aircraft parts. There is an exemption available (in new Article 3c(5)) in respect of the execution until 6 November 2022 of contracts concluded before 7 October 2022. There is also a licensing ground available in respect of the newly listed goods where their supply is necessary for the production of titanium goods required in the aeronautic industry, for which no alternative supply is available.
• Article 3ea of the Russia Regulation (which imposes restrictions on port access to Russian flagged vessels) has been extended to apply (from 8 April 2023) to any vessel certified by the Russian Maritime Register of Shipping (“RMRS”) and certain other minor amendments have been made to this restriction.
• Article 3k and Annex XXIII (the list of ‘goods which could contribute in particular to the enhancement of Russian industrial capacities’) have been amended. In particular, coal products have been added to Annex XXIII, such that they are now subject to restrictions on their supply to Russia, in addition to the pre-existing restrictions in Article 3j and Annex XXII which prohibited the import of Russian-origin coal products into the EU (with certain exceptions). The new restrictions on the supply of coal products are subject to an exception for the execution until 8 January 2023 of contracts concluded prior to 7 October 2022, or ancillary contracts. More generally, the supply of Annex XXIII goods is also subject to a new licensing ground relating to the establishment, operation, maintenance, fuel supply and retreatment and safety of civil nuclear capabilities, the supply of precursor material for the production of medical radioisotopes and similar medical applications, or critical technology for environmental radiation monitoring, and civil nuclear cooperation.

Oil price cap

As set out in the relevant press releases, Regulation 2022/1904 “marks the beginning of the implementation within the EU of the G7 agreement on Russian oil exports”. The Commission has stated that the measures “would allow European operators to undertake and support the transport of Russian oil to third countries, provided its price remains under a pre-set ‘cap'”.

To this end, Regulation 2022/1904 introduces a prohibition on the transport to third countries of Russian crude oil or petroleum products (defined by reference to their CN codes and Annex XXV of the Russia Regulation). The pre-existing restrictions on technical assistance, brokering services or financing or financial assistance (“services restrictions”), related to the transport of these goods have also been amended so that the ‘grandfathering’ provisions will work in parallel. Thus, for both sets of restrictions, they will be effective:

• On 5 December 2022, for crude oil falling within CN code 2709 00;
• On 5 February 2023, for petroleum products falling under CN code 2710.

In addition to the delayed implementation date, the (price cap) measures require a further EU Council Decision before they take effect.

Both the transport (price cap) and services restrictions contain certain exemptions, including in relation to:

• crude oil or petroleum products where the purchase price per barrel does not exceed the price cap (Art.5n(6))
• crude oil or petroleum products originating in a third country and merely being loaded in, departing from, or transiting through Russia; and
• the transport of specific products to specific third countries (as specified in Annex XXIX to the Russia Regulation).

The services restrictions are also subject to a new exemption, permitting the payment of insurance claims after the relevant in-force dates pursuant to insurance contracts concluded before 4 June 2022, provided that the insurance coverage has ceased by the relevant date.

Finally, where there is a change in the level of the price cap, as set out in new Article 3n(5) of the Russia Regulation, the new transport prohibition will not apply, for a period of 90 days, to the relevant Russian products, provided that the transport is based on a pre-existing contract, and the purchase price per barrel did not exceed the price set out in Annex XXVIII to the Russia Regulation on the date of the contract. Effectively, there will be a period of 90 days to perform existing contracts each time the price cap changes.

Russian state-owned enterprises

EU nationals are now prohibited from holding any post on the governing bodies of certain Russian state-owned or controlled entities, as listed in Annex XIX of the Russia Regulation (see new Article 5aa(1a) of the Russia Regulation).

The Russian Maritime Register of Shipping (RMRS) has also been added to Annex XIX of the Russia Regulation, meaning that it is now subject to the EU’s “transaction ban”, as set out in Article 5aa. Article 5aa(2b) contains carve-outs in respect of the execution until 8 January 2023 of contracts entered into with RMRS prior to 7 October and the receipt of payments “due by” RMRS pursuant to contracts performed before 8 January 2023.

Services

The previous limitations on the amounts that can be held in cryptoasset wallets, accounts or custody services have been replaced by a full prohibition on the provision of such services to Russian nationals/residents and Russian incorporated companies (new Article 5b of the Russia Regulation).

The existing restrictions on the provision to Russian entities of accounting and other services (see our previous blogpost for details) have been extended to also include the provision of the following additional types of services:

• architectural and engineering services. According to the recitals of Regulation 2022/1904, this covers “both architectural and engineering services as well as integrated engineering services, urban planning and landscape architectural services and engineering-related scientific and technical consulting services”;
• legal advisory services, covering: “the provision of legal advice to customers in non-contentious matters, including commercial transactions, involving the application or interpretation of law; participation with or on behalf of clients in commercial transactions, negotiations and other dealings with third parties; and preparation, execution and verification of legal documents” but not “any representation, advice, preparation of documents or verification of documents in the context of legal representation services, namely in matters or proceedings before administrative agencies, courts or other duly constituted official tribunals, or in arbitral or mediation proceedings”; and
• IT consultancy services, covering “consultancy services related to the installation of computer hardware, including assistance services to the clients in the installation of computer hardware (i.e. physical equipment) and computer networks, and software implementation services, including all services involved consultancy services on, development of and implementation of software”.

Regulation 2022/1904 contains various exemptions from these restrictions, including in relation to (i) the termination of pre-existing contracts; (ii) services which are strictly necessary for the exercise of the right of defence in juridical proceedings, the right to an effective legal remedy, or access to judicial / administrative / arbitral proceedings in a Member State or the recognition or enforcement of a judgment or arbitral award; (iii) services to Russian entities owned or controlled by an entity incorporated in the EU, EEA, Switzerland or a partner country (as listed in Annex VIII of the Russia Regulation); and (iv) public health emergencies or health and safety issues. Member State competent authorities may also license the provision of services under various circumstances, as listed in Article 5n(10) and (11). These include humanitarian grounds and services relating to electronic communication services.

The exemption for the provision of services to Russian entities owned or controlled by an entity incorporated in the EU, EEA, Switzerland or a partner country is particularly welcome. Previously, this exemption only applied to subsidiaries of companies in the EU, EEA or Switzerland. The extension to ‘partner countries’ (currently UK, US, Japan and South Korea) means that, for example, an EU person could now provide otherwise prohibited accounting, legal advisory, business consulting etc services to the Russian subsidiaries of UK companies.

Circumvention

The listing criteria in the Asset Freeze Regulation (under which the EU may designate individuals or entities as subject to the asset freeze) have been broadened (by Regulation 2022/1905)  to include those who facilitate “infringements of the prohibition against circumvention”  of the EU’s sanctions against Russia. The EU has the ability to designate natural or legal persons, entities or bodies under this ground (we noted when the eighth package was first announced that the relevant EU press statements referred only to the designation of “individuals” under this ground).

To date, no designations have been made under those expanded grounds, but this provides the EU with an additional deterrent against sanctions evasion.