Council Regulation (EU) 2022/1904 of 6 October 2022 amending Regulation (EU) No 833/2014 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 (CFSP) 2022/1909 of 6 October 2022 amending 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 from the High Representative of the Union for Foreign Affairs and Security Policy and the European Commission,

Whereas:

(1) On 31 July 2014, the Council adopted Regulation (EU) No 833/2014 (2).

(2) Regulation (EU) No 833/2014 gives effect to certain measures provided for in Council Decision 2014/512/CFSP (3).

(3) In response to the Russian Federation’s further aggression against Ukraine, the organisation of illegal sham 'referenda' in the parts of the Donetsk, Kherson, Luhansk and Zaporizhzhia regions that are currently illegally occupied by the Russian Federation, the illegal annexation of those Ukrainian regions by the Russian Federation, as well as the mobilisation in the Russian Federation and its repeated threat to use weapons of mass destruction, on 6 October 2022 the Council adopted Decision (CFSP) 2022/1909 amending Decision 2014/512/CFSP.

(4) Decision (CFSP) 2022/1909 extends the list of restricted items which might contribute to the Russian Federation’s military and technological enhancement or to the development of its defence and security sector, by including in that list certain chemical substances, nerve agents and goods which have no practical use other than for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment, or which could be used for those purposes. Goods subject to that prohibition are also covered by Regulation (EU) 2019/125 of the European Parliament and of the Council (4). In this context, Regulation (EU) No 833/2014 is to be treated as lex specialis and therefore, in the event of a conflict, takes precedence over Regulation (EU) 2019/125.

(5) Decision (CFSP) 2022/1909 prohibits the sale, supply, transfer or export of firearms, their parts and essential components and ammunition. Goods subject to that prohibition are also covered by Regulation (EU) No 258/2012 of the European Parliament and of the Council (5). In this context, Regulation (EU) No 833/2014 is to be treated as lex specialis and therefore, in the event of a conflict, takes precedence over Regulation (EU) No 258/2012.

(6) Decision (CFSP) 2022/1909 further extends the import ban on steel products that either originate in the Russian Federation or have been exported from it. It also imposes import restrictions on additional items that generate significant revenues for the Russian Federation. That prohibition applies to goods that originate in the Russian Federation or are exported from it and includes such items as wood pulp and paper, certain elements used in the jewellery industry such as stones and precious metals, certain machinery and chemical items, cigarettes, plastics and finished chemical products such as cosmetics. It also extends the export prohibition by adding new items to the list of goods which could contribute to the enhancement of Russian industrial capacities. It also imposes restrictions on the sale, supply, transfer or export of additional goods used in the aviation sector.

(7) The Union is committed to avoiding threats to nuclear safety and security. Consequently, none of the measures in this Regulation seek to undermine the safety of civil nuclear capabilities or civil nuclear cooperation, in particular in the field of research and development, or to undermine the planning, construction and engineering, commissioning, maintenance or fuel supply of newly built nuclear projects.

(8) Decision (CFSP) 2022/1909 introduces an exemption from the prohibition to provide technical assistance, brokering services or financing or financial assistance, related to the maritime transport to third countries of crude oil or petroleum products which originate in or are exported from Russia, purchased at or below a pre-established price cap agreed by the Price Cap Coalition. That exemption should mitigate adverse consequences on energy supply to third countries and reduce price surges driven by extraordinary market conditions, while limiting Russian oil revenues.

(9) The exemption from the prohibition to provide maritime services is conditional upon the Council introducing the price cap into Annex XI to Decision 2014/512/CFSP. In deciding whether to introduce that price cap, the Council will take into account the effectiveness of the measure in terms of its expected results, international adherence to and informal alignment with the price cap mechanism, and its potential impact on the Union and its Member States.

(10) The Commission should fully support the Council in making the assessment as to whether to introduce the price cap, including by convening coordination meetings with the Member States and representatives of the affected industries. Following the entry into force of the first Council Decision making the price cap applicable, the Commission will continue to convene such meetings to assess, inter alia, potential circumvention practices of the price cap, such as deflagging of vessels, and their impact on the effectiveness of the price cap mechanism, and will propose appropriate solutions.

(11) The price cap should apply to the maritime transport to third countries of crude oil and certain petroleum products and to the provision of related services. It does not affect in any way the exceptions allowing certain Member States to continue importing crude oil and petroleum products from Russia due to their specific situation or in the event that the supply of crude oil by pipeline from Russia is interrupted for reasons outside their control. Specific projects which are essential for the energy security of certain third countries may be exempted from the price cap. That exemption should be time-limited, in order to ensure that it remains appropriate, and can be renewed, if justified by the third country’s energy security needs.

(12) The price cap mechanism would rely on an attestation process that would enable operators in the supply chain of seaborne Russian oil to demonstrate that it has been purchased at or below the price cap. The Commission, in close consultation with the Council, would issue guidance to specify the practical aspects of the price cap application, in order to facilitate uniform application and enable a level playing field in the Union and globally.

(13) In addition to the existing prohibitions related to the provision of services for the maritime transport of crude oil and certain petroleum products to third countries, Decision (CFSP) 2022/1909 further prohibits the maritime transport of such goods to third countries. That prohibition should not be applicable unless and until the Council adopts the necessary measures making the price cap applicable.

(14) In the event that a vessel under the flag of a third country has transported Russian crude oil or petroleum products purchased at a price above the price cap, it should be prohibited to provide technical assistance, brokering services, financing or financial assistance, including insurance, related to any transport in the future by that vessel of crude oil or petroleum products.

(15) Decision (CFSP) 2022/1909 also expands the prohibition to engage in any transaction with certain Russian State-owned or controlled legal persons, entities or bodies by including a ban on Union nationals to hold any posts on the governing bodies of those legal persons, entities or bodies.

(16) Decision (CFSP) 2022/1909 adds to the list of Russian State-owned or controlled entities that are subject to the transaction ban the Russian Maritime Register of Shipping, a 100 % State-owned entity which performs activities related to the classification and inspection, including in the field of security, of Russian and non-Russian ships and crafts. That addition prohibits the provision of any sort of economically valuable benefit to the Russian Maritime Register of Shipping. Decision (CFSP) 2022/1909 also requires the withdrawal of authorisations granted by Member States to the Russian Maritime Register of Shipping under Directive 2005/65/EC (6), 2009/15/EC (7) or (EU) 2016/1629 (8) of the European Parliament and of the Council or Regulation (EC) No 725/2004 of the European Parliament and of the Council (9). To enable the Member States to effect such withdrawals in compliance with Regulation (EC) No 391/2009 of the European Parliament and of the Council (10) and Directive (EU) 2016/1629, the Union's recognition of the Russian Maritime Register of Shipping should be withdrawn.

(17) Decision (CFSP) 2022/1909 extends the port access and lock ban in the territory of the Union to vessels certified by the Russian Maritime Register of Shipping.

(18) Decision (CFSP) 2022/1909 removes the threshold for the existing prohibition on the provision of crypto-asset wallet, account or custody services to Russian persons and residents, thereby banning the provision of such services regardless of the total value of such crypto-assets.

(19) Furthermore, Decision (CFSP) 2022/1909 extends the existing prohibition on the provision of certain services to the Russian Federation by banning the provision of architectural and engineering services as well as of IT consultancy services and legal advisory services. In line with the Central Products Classification as set out in Statistical Office of the United Nations, Statistical Papers, Series M, No 77, CPC prov., 1991, ‘architectural and engineering services’ 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. The provision of technical assistance related to goods exported to Russia remains allowed, provided that the sale, supply, transfer or export of such goods is not prohibited under this Regulation at the time at which such technical assistance is provided. ‘IT consultancy services’ covers 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 involving consultancy services on, development of and implementation of software. ‘Legal advisory services’ covers: 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. ‘Legal advisory services’ does not include 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.

(20) Finally, Decision (CFSP) 2022/1909 makes certain technical corrections in the operative text and certain annexes.

(21) 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.

(22) Regulation (EU) No 833/2014 should therefore be amended accordingly,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EU) No 833/2014 is amended as follows:

(6) in Article 3j, paragraph 1 is replaced by the following: ‘1.   It shall be prohibited to purchase, import or transfer, directly or indirectly, coal and other products, as listed in Annex XXII, into the Union if they originate in Russia or are exported from Russia.’;

(10) in Article 5b, paragraph 2 is replaced by the following: ‘2.   It shall be prohibited to provide crypto-asset wallet, account or custody services to Russian nationals or natural persons residing in Russia, or legal persons, entities or bodies established in Russia.’;

(11) in Article 5m, paragraph 4 is replaced by the following: ‘4.   Paragraphs 1 and 2 shall not apply when the trustor or beneficiary is a national of a Member State, of a country member of the European Economic Area or of Switzerland, or a natural person having a temporary or permanent residence permit in a Member State, in a country member of the European Economic Area or in Switzerland.’;

(14) Annex VII is amended in accordance with Annex I to this Regulation;

(15) Annex VIII is amended in accordance with Annex II to this Regulation;

(16) Annex XI is amended in accordance with Annex III to this Regulation;

(17) Annex XVII is amended in accordance with Annex IV to this Regulation;

(18) Annex XIX is amended in accordance with Annex V to this Regulation;

(19) Annex XXI is amended in accordance with Annex VI to this Regulation;

(20) Annex XXIII is amended in accordance with Annex VII to this Regulation;

(21) Annex XXVIII is inserted in accordance with Annex VIII to this Regulation;

(22) Annex XXIX is inserted in accordance with Annex IX to this Regulation.

Article 2

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, 6 October 2022.

For the Council The President M. BEK

(1) See page 122 of this Official Journal.

(2) Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ L 229, 31.7.2014, p. 1).

(3) Council Decision 2014/512/CFSP of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ L 229, 31.7.2014, p. 13).

(4) Regulation (EU) 2019/125 of the European Parliament and of the Council of 16 January 2019 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment (OJ L 30, 31.1.2019, p. 1).

(5) Regulation (EU) No 258/2012 of the European Parliament and of the Council of 14 March 2012 implementing Article 10 of the United Nations’ Protocol against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition, supplementing the United Nations Convention against Transnational Organised Crime (UN Firearms Protocol), and establishing export authorisation, and import and transit measures for firearms, their parts and components and ammunition (OJ L 94, 30.3.2012, p. 1).

(6) Directive 2005/65/EC of the European Parliament and of the Council of 26 October 2005 on enhancing port security (OJ L 310, 25.11.2005, p. 28).

(7) Directive 2009/15/EC of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (OJ L 131, 28.5.2009, p. 47).

(8) Directive (EU) 2016/1629 of the European Parliament and of the Council of 14 September 2016 laying down technical requirements for inland waterway vessels, amending Directive 2009/100/EC and repealing Directive 2006/87/EC (OJ L 252, 16.9.2016, p. 118).

(9) Regulation (EC) No 725/2004 of the European Parliament and of the Council of 31 March 2004 on enhancing ship and port facility security (OJ L 129, 29.4.2004, p. 6).

(10) Regulation (EC) No 391/2009 of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations (OJ L 131 28.5.2009, p. 11).