Council Regulation (EU) 2022/263 of 23 February 2022 concerning restrictive measures in response to the recognition of the non-government controlled areas of the Donetsk and Luhansk oblasts of Ukraine and the ordering of Russian armed forces into those areas

Article 1

For the purposes of this Regulation, the following definitions apply:

(a) ‘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;

(b) ‘claim’ means any claim, whether or not asserted by legal proceedings, made before or after 24 February 2022, under or in connection with a contract or transaction, and includes in particular: (i) a claim for performance of any obligation arising under or in connection with a contract or transaction; (ii) a claim for extension or payment of a bond, financial guarantee or indemnity of whatever form; (iii) a claim for compensation in respect of a contract or transaction; (iv) a counterclaim; (v) a claim for the recognition or enforcement, including by the procedure of exequatur, of a judgment, an arbitration award or an equivalent decision, wherever made or given;

(c) ‘contract or transaction’ means any transaction of whatever form, whatever the applicable law, and whether comprising one or more contracts or similar obligations made between the same or different parties; for this purpose ‘contract’ includes a bond, guarantee or indemnity, particularly a financial guarantee or financial indemnity, and credit, whether legally independent or not, as well as any related provision arising under, or in connection with, the transaction;

(d) ‘specified territories’ means the non-government controlled areas of Ukraine in the oblasts of Donetsk, Kherson, Luhansk and Zaporizhzhia;

(e) ‘entity in the specified territories’ means any entity having its registered office, central administration or principal place of business in the specified territories, its subsidiaries or affiliates under its control in the specified territories, as well as branches and other entities operating in the specified territories;

(f) ‘goods originating in the specified territories’ means goods which are wholly obtained in the specified territories or which have undergone their last substantial transformation there, in accordance, mutatis mutandis, with Article 60 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (¹);

(g) ‘investment services’ 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,

(h) ‘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; technical assistance includes verbal forms of assistance;

(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;

(j) ‘competent authorities’ means the competent authorities of the Member States as identified on the websites listed in Annex I.

Article 2

It shall be prohibited:

(a) to import into the European Union goods originating in the specified territories;

(b) to provide, directly or indirectly, financing or financial assistance as well as insurance and reinsurance related to the import of the goods referred to in point (a).

Article 3

It shall be prohibited to:

(a) acquire any new, or extend any existing participation in ownership of, real estate located in the specified territories;

(b) acquire any new, or extend any existing participation in ownership or control of, entities in the specified territories, including the acquisition in full of such an entity or the acquisition of shares therein, and other securities of a participating nature of such an entity;

(c) grant or be part of any arrangement to grant any loan or credit or otherwise provide financing, including equity capital, to an entity in the specified territories, or for the documented purpose of financing such an entity;

(d) create any joint venture in the specified territories or with an entity in the specified territories;

(e) provide investment services directly related to the activities referred to in points (a) to (d).

Article 3a

The prohibition in paragraph 1 shall not apply to the sale, supply, transfer or export of banknotes denominated in any official currency of a Member State provided that such sale, supply, transfer or export is necessary for:

(a) the personal use of natural persons travelling to the specified territories or members of their immediate families travelling with them;

(b) the official purposes of international organisations enjoying immunities in accordance with international law located in the specified territories; or

(c) civil society and media activities that directly promote democracy, human rights or the rule of law in the specified territories which receive public funding from the Union, Member States or countries listed in Annex IV.

Article 4

It shall be prohibited to sell, supply, transfer, or export, directly or indirectly, goods and technology, whether or not originating in the Union, as listed in Annex II:

(a) to any natural or legal person, entity or body in the specified territories, or

(b) for use in the specified territories.

Annex II shall include certain goods and technologies suited for use in the following key sectors:

(i) transport;

(ii) telecommunications;

(iii) energy;

(iv) the prospection, exploration and production of oil, gas and mineral resources.

It shall be prohibited to:

(a) provide, directly or indirectly, technical assistance or brokering services related to the goods and technology listed in Annex II, or related to the provision, manufacture, maintenance and use of such items to any natural or legal person, entity or body in the specified territories or for use in the specified territories;

(b) provide, directly or indirectly, financing or financial assistance related to the goods and technology listed in Annex II to any natural or legal person, entity or body in the specified territories or for use in the specified territories.

Article 4a

The prohibitions set out in Article 4 shall not apply to:

(a) the sale, supply, transfer or export of goods or technology listed in Annex II;

(b) the provision, directly or indirectly, of technical assistance or brokering services related to goods and technology listed in Annex II or related to the provision, manufacture, maintenance and use of such items; or

(c) the provision, directly or indirectly, of financing or financial assistance related to goods and technology listed in Annex II, to any natural or legal person, entity or body in the specified territories or for use in the specified territories by: — public bodies or legal persons, entities or bodies which receive public funding from the Union or Member States, provided that such goods, technology, services and assistance are necessary for exclusively humanitarian purposes in the specified territories; — organisations and agencies which are pillar-assessed by the Union and with which the Union has signed a financial framework partnership agreement on the basis of which the organisations and agencies act as humanitarian partners of the Union, provided that such goods technology, services and assistance are necessary for exclusively humanitarian purposes in the specified territories; — organisations and agencies to which the Union has granted the Humanitarian Partnership Certificate or which are certified or recognised by a Member State in accordance with national procedures, provided that such goods, technology, services and assistance are necessary for exclusively humanitarian purposes in the specified territories; or — Member States’ specialised agencies, provided that such goods, technology, services and assistance are necessary for exclusively humanitarian purposes in the specified territories.

By way of derogation from Article 4, in cases not covered by paragraph 1 of this Article, the competent authorities may grant specific or general authorisations, under such general and specific terms and conditions they deem appropriate, for:

(a) the sale, supply, transfer or export of goods or technology listed in Annex II;

(b) the provision, directly or indirectly, of technical assistance or brokering services related to goods and technology listed in Annex II or related to the provision, manufacture, maintenance and use of such items; or

(c) the provision, directly or indirectly, of financing or financial assistance related to goods and technology listed in Annex II,

to any natural or legal person, entity or body in the specified territories or for use in the specified territories, provided that such goods, technology, services and assistance are necessary for exclusively humanitarian purposes in the specified territories.

Article 5

It shall be prohibited to:

(a) provide, directly or indirectly, technical assistance or brokering services directly relating to infrastructure in the specified territories in the sectors referred to in Article 4(1a), independently of the origin of the goods and technology;

(b) provide technical assistance, brokering services or other services related to the goods and services referred to in paragraphs 1, 2, 2a and 2b for their provision, directly or indirectly, to legal persons, entities or bodies in the specified territories;

(c) provide financing or financial assistance related to the goods and services referred to in paragraphs 1, 2, 2a and 2b for their provision, or for the provision of related technical assistance, brokering services or other services, directly or indirectly, to legal persons, entities or bodies in the specified territories;

(d) sell, license or transfer in any other way intellectual property rights or trade secrets as well as grant rights to access or re-use any material or information protected by means of intellectual property rights or constituting trade secrets related to the software referred to in paragraph 2b and to the provision, manufacture, maintenance and use of that software, directly or indirectly to any natural or legal person, entity or body in the specified territories or for use in the specified territories.

By way of derogation from paragraphs 1, 2, 2a, 2b and 3, the competent authorities may authorise the sale, supply, transfer, export, or provision of the services referred to therein, under such conditions as they deem appropriate, after having determined that this is necessary for:

(a) humanitarian purposes, such as delivering or facilitating the delivery of assistance, including medical supplies, food, or the transfer of humanitarian workers and related assistance, or for evacuations;

(b) civil society activities that directly promote democracy, human rights or the rule of law in the specified territories;

(c) the functioning of international organisations enjoying immunities in accordance with international law located in the specified territories;

(d) ensuring critical energy supply within the Union and the purchase, import or transport into the Union of titanium, aluminium, copper, nickel, palladium and iron ore;

(e) ensuring the continuous operation of infrastructures, hardware and software which are critical for human health and safety, or the safety of the environment;

(f) the establishment, operation, maintenance, fuel supply and retreatment and safety of civil nuclear capabilities, and the continuation of design, construction and commissioning required for the completion of civil nuclear facilities, the supply of precursor material for the production of medical radioisotopes and similar medical applications, or critical technology for environmental radiation monitoring, as well as for civil nuclear cooperation, in particular in the field of research and development;

(g) the provision of electronic communication services by Union telecommunication operators necessary for the operation, maintenance and security, including cybersecurity, of electronic communication services, in Ukraine, in the Union, between Ukraine and the Union, and for data centre services in the Union.

Article 5a

The prohibitions set out in Article 5 shall not apply to the provision of technical assistance or services by:

(a) public bodies or legal persons, entities or bodies which receive public funding from the Union or Member States, provided that such assistance and services are necessary for exclusively humanitarian purposes in the specified territories;

(b) organisations and agencies which are pillar-assessed by the Union and with which the Union has signed a financial framework partnership agreement on the basis of which the organisations and agencies act as humanitarian partners of the Union, provided that such assistance and services are necessary for exclusively humanitarian purposes in the specified territories;

(c) organisations and agencies to which the Union has granted the Humanitarian Partnership Certificate or which are certified or recognisedby a Member State in accordance with national procedures, provided that such assistance and services are necessary for exclusively humanitarian purposes in the specified territories; or

(d) Member States’ specialised agencies, provided that such assistance and services are necessary for exclusively humanitarian purposes in the specified territories.

Article 6

It shall be prohibited to provide services directly related to tourism activities in the specified territories.

Article 7

The competent authorities may grant, under such terms and conditions as they deem appropriate, an authorisation in relation to the activities referred to in Articles 3(1) and 4(2), and to the goods and technology referred to in Article 4(1), provided that they are:

(a) necessary for official purposes of international organisations enjoying immunities in accordance with international law located in the specified territories;

(b) related to projects exclusively in support of hospitals or other public health institutions providing medical services or civilian education establishments located in the specified territories; or

(c) appliances or equipment for medical use.

The Commission and the Member States shall inform each other of the measures taken under this paragraph and share any other relevant information at their disposal.

Article 8

It shall be prohibited to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent prohibitions in this Regulation, including by participating in such activities without deliberately seeking that object or effect but being aware that the participation may have that object or effect and accepting that possibility.

Article 9

Actions by natural or legal persons, entities or bodies shall not give rise to any 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 10

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, particularly 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) designated natural or legal persons, entities or bodies listed in Annex I to Regulation (EU) No 269/2014;

(b) any natural person who, or legal person, entity or body which, has been found by an arbitral, judicial or administrative decision to have infringed the prohibitions set out in this Regulation;

(c) any natural or legal person, entity or body, if the claim relates to goods the import of which is prohibited under Article 2(1);

(d) any person, entity or body in the specified territories;

(e) any Russian person, entity or body;

(f) any person, entity or body acting through or on behalf of one of the persons, entities or bodies referred to in points (a) to (e) of this paragraph.

Article 10a

Any person referred to in Article 15, point (c) or (d), shall be entitled to recover, in judicial proceedings before the competent courts of a Member State, any direct or indirect damages, including legal costs, incurred by that person or by a legal person, entity or body that the person referred to in Article 15, point (d) owns or controls, as a consequence of claims lodged with courts in third countries by persons, entities and bodies referred to in Article 10(1), points (a) to (f), 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, provided that the person concerned does not have effective access to the remedies under the relevant jurisdiction. Such damages may be recovered from the persons, entities or bodies referred to in Article 10(1), points (a) to (f), that lodged the claims with the courts in the third country, or from persons, entities or bodies that own or control those entities or bodies.

Article 10b

Where no court of a Member State has jurisdiction pursuant to other provisions of Union law or of the law of a Member State, a court of a Member State may, on an exceptional basis, hear a claim for damages brought pursuant to Article 10a, provided that the case has a sufficient connection with the Member State of the court seised.

Article 11

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 in respect of:

(a) authorisations granted or denied under this Regulation;

(b) violation and enforcement problems, penalties applied for infringements of the provisions of this Regulation and judgments handed down by national courts.

It shall be presumed that the disclosure of any documents or proposals referred to in the first subparagraph would harm the security of the Union or that of one or more of its Member States or the conduct of their international relations.

Article 11a

Article 12

The Commission shall be empowered to amend Annex I on the basis of information supplied by Member States.

Article 13

Article 13a