Council Regulation (EU) 2023/427 of 25 February 2023 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) 2023/434 of 25 February 2023 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 of the High Representative of the Union for Foreign Affairs and Security Policy and of the European Commission,

Whereas:

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

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

(3) On 25 February 2023 the Council adopted Decision (CFSP) 2023/434, amending Decision 2014/512/CFSP.

(4) Decision (CFSP) 2023/434 expands the list of entities directly supporting Russia’s military and industrial complex in its war of aggression against Ukraine, on whom tighter export restrictions regarding dual-use goods and technology as well as goods and technology which might contribute to the technological enhancement of Russia’s defence and security sector are imposed by adding 96 new entities to that list. Taking into account the direct connection between Iranian manufacturers of Unmanned Aerial Vehicles and the Russian military and industrial complex and the concrete risk that certain goods or technology are used for the manufacture of military systems that contribute to Russia’s war of aggression against Ukraine, several Iranian entities have been added to the list of natural and legal persons, entities and bodies subject to restrictive measures set out in Annex IV to Decision 2014/512/CFSP.

(5) It is appropriate to extend the list of restricted items which might contribute to Russia’s military and technological enhancement or the development of its defence and security sector, by adding rare-earths and compounds, electronic integrated circuits and thermographic cameras, among others.

(6) Decision (CFSP) 2023/434 extends the list of partner countries which are applying a set of export control measures substantially equivalent to those set out in Regulation (EU) No 833/2014.

(7) Decision (CFSP) 2023/434 imposes further restrictions on exports of goods which could contribute in particular to the enhancement of Russian industrial capacities. Additionally, that Decision introduces further restrictions on imports of goods which generate significant revenues for Russia, thereby enabling the continuation of its war of aggression against Ukraine.

(8) Furthermore, in order to minimise the risk of circumvention of the restrictive measures, Decision (CFSP) 2023/434 prohibits the transit via the territory of Russia of dual-use goods and technology and of arms exported from the Union.

(9) Decision (CFSP) 2023/434 extends the suspension of broadcasting licences in the Union of Russian media outlets under the permanent control of the Russian leadership and the prohibition against broadcasting their content.

(10) The Russian Federation has engaged in a systematic, international campaign of media manipulation and distortion of facts in order to enhance its strategy of destabilisation of its neighbouring countries and of the Union and its Member States. In particular, the propaganda has repeatedly and consistently targeted European political parties, especially during election periods, as well as civil society, asylum seekers, Russian ethnic minorities, gender minorities, and the functioning of democratic institutions in the Union and its Member States.

(11) In order to justify and support its war of aggression against Ukraine, the Russian Federation has engaged in continuous and concerted propaganda actions targeted at civil society in the Union and neighbouring countries, gravely distorting and manipulating facts.

(12) Those propaganda actions have been channelled through a number of media outlets under the permanent direct or indirect control of the leadership of the Russian Federation. Such actions constitute a significant and direct threat to the Union’s public order and security. Those media outlets are essential and instrumental in bringing forward and supporting the war of aggression against Ukraine, and for the destabilisation of its neighbouring countries.

(13) In view of the gravity of the situation, and in response to Russia’s war of aggression against Ukraine, it is necessary, consistent with the fundamental rights and freedoms recognised in the Charter of Fundamental Rights, in particular with the right to freedom of expression and information as recognised in Article 11 thereof, to introduce further restrictive measures to suspend the broadcasting activities of such media outlets in the Union, or directed at the Union. The measures should be maintained until the aggression against Ukraine is put to an end, and until the Russian Federation, and its associated media outlets, cease to conduct propaganda actions against the Union and its Member States.

(14) Consistent with the fundamental rights and freedoms recognised in the Charter of Fundamental Rights, in particular with the right to freedom of expression and information, the freedom to conduct a business and the right to property as recognised in Articles 11, 16 and 17 thereof, those measures do not prevent the media outlets and their staff from carrying out activities in the Union other than broadcasting, such as research and interviews. In particular, those measures do not modify the obligation to respect the rights, freedoms and principles referred to in Article 6 of the Treaty on European Union, including in the Charter of Fundamental Rights, and in Member States’ constitutions, within their respective fields of application.

(15) In order to ensure consistency with the process in Decision 2014/512/CFSP for suspending broadcasting licences, the Council should exercise implementing powers to decide, following an examination of the respective cases, whether the restrictive measures are to become applicable, on the date specified in this Regulation, in respect of several entities listed in Annex XV to Regulation (EU) No 833/2014.

(16) Critical infrastructures and entities, as providers of essential services, play an indispensable role in the maintenance of vital societal functions or economic activities in the internal market in an increasingly interdependent Union economy. The Union framework is set out in Council Directive 2008/114/EC (4), which is repealed with effect from 18 October 2024, on the identification and designation of European critical infrastructures and Directive (EU) 2022/2557 of the European Parliament and of the Council (5) on the resilience of critical entities with the aim of both enhancing the resilience of critical entities in the internal market by harmonised minimum rules and assisting them by means of coherent and dedicated support and supervision measures.

(17) Russia’s influence in such infrastructures and entities could jeopardise their well-functioning and ultimately constitute a hazard for the provision of essential services to European citizens. It is therefore appropriate to restrict the possibility to hold any posts in the governing bodies of those entities.

(18) In accordance with the current legal framework, the new prohibition on holding any posts in the governing bodies applies to European critical infrastructures and critical infrastructures identified or designated as such under national law, as defined in Directive 2008/114/EC, which applies until 18 October 2024. As from 18 October 2024, the new prohibition will apply to critical entities and critical infrastructures, as defined in Directive (EU) 2022/2557. Directive (EU) 2022/2557 lays down an obligation for Member States to identify by 17 July 2026 in their national law the critical entities for the sectors and subsectors set out in the Annex thereto. Therefore, as from 17 July 2026, the new prohibition on holding any posts in the governing bodies will concern all the critical entities identified or designated as such by Member States.

(19) Gas storage capacity being a critical asset for the security of supply of gas in the Union, Decision (CFSP) 2023/434 imposes a prohibition on providing gas storage capacity in the Union to Russian nationals, natural persons residing in Russia or legal persons or entities established in Russia. This is necessary in oder to avoid Russia’s weaponisation of its gas supply and risks of market manipulation that would be detrimental to the critical energy supply of the Union.

(20) In order to avoid circumvention of and ensure compliance with the prohibition on any non-Russian-registered aircraft which is owned or chartered, or otherwise controlled by any Russian natural or legal person, entity or body from landing in, taking off from, or overflying, the territory of the Union, Decision (CFSP) 2023/434 introduces an obligation for aircraft operators to notify non-scheduled flights to their competent authorities. The Member State concerned should immediately inform other Member States, the Network Manager and the Commission where it does not clear such a flight.

(21) Decision (CFSP) 2023/434 extends the duration of the exemption from the prohibition to enter into any transactions with certain Russian state-owned entities if such a transaction is strictly necessary for the wind-down of a joint venture or similar legal arrangement. It also extends the duration of the period in which the competent authorities of the Member States may authorise transactions which are necessary for the divestment and withdrawal by those Russian state-owned entities from Union companies.

(22) In order to ensure uniform application of the prohibition of transactions relating to the management of reserves and assets of the Central Bank of Russia, it is appropriate to require that natural and legal persons, entities and bodies supply to the competent authorities of the Member States and simultaneously to the Commission information on such assets and reserves which they hold or control or are a counterparty to. It is also appropriate to specify the type of information to be provided and how this should be treated and used to ensure the uniform application of this reporting obligation. It should also be clarified that Member States and the relevant natural and legal persons, entities and bodies must cooperate with the Commission in any verification of such information and that the Commission may request any additional information, while informing the Member State concerned of such request. The obligation to report is ancillary to the effective application of the prohibition of the transactions related to the management of reserves and assets of the Central Bank of Russia and is without prejudice to the monetary functions and the principle of independence of the European Central Bank and the national central banks. In order to allow time to adapt, it is appropriate to provide for deferred application of the new reporting requirements.

(23) In order to further facilitate divestment from the Russian market by Union operators, Decision (CFSP) 2023/434 introduces a temporary derogation from the prohibition on providing certain services set out in Regulation (EU) No 833/2014. In order to facilitate an expeditious exit from the Russian market, this derogation is temporary and limited in scope, enabling until 31 December 2023 the continuation of the provision of services to and for the exclusive benefit of the legal persons, entities or bodies resulting from the divestment. Additionally, the competent authorities of the Member States should ensure that the services are not provided to the Government of Russia or benefit military end-users or have a military-end use.

(24) The Union is committed to avoiding threats to maritime safety. Consequently, Decision (CFSP) 2023/434 provides for certain exemptions for Union operators to provide pilot services to vessels in innocent passage as defined by international law which are necessary for reasons of maritime safety.

(25) In order to ensure legal certainty concerning the treatment of imports, Decision (CFSP) 2023/434 provides for rules on the release by the customs authorities of the Member States of goods which are physically in the Union and which had already been presented to customs authorities when they became subject to such restrictions. This possibility applies regardless of the procedures under which the goods were placed after presentation to customs (transit, inward processing, release for free circulation etc.) or of the procedural steps and formalities pursuant to the Union Customs Code necessary for the release. Decision (CFSP) 2023/434 also authorises Member States to release goods already brought into the Union in the past. This is necessary for the benefit of Union operators that brought those goods into the Union in good faith at a time when they were not yet subject to any import restrictive measures, including when their import was still allowed during a wind-down period. The competent authorities of the Member States should ensure that the release of the goods and any payment related thereto comply with the provisions and objectives of Union restrictive measures. Similarly, any decision not to release such goods should comply with those objectives and ensure, among others, that the goods are not returned to Russia.

(26) Finally, Decision (CFSP) 2023/434 makes certain technical corrections in the operative text of Decision 2014/512/CFSP.

(27) These measures fall within the scope of the Treaty on European Union 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.

(28) 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:

(2) in Article 2, the following paragraphs are inserted: ‘1a.   The transit via the territory of Russia of the dual-use goods and technology, as referred to in paragraph 1, exported from the Union shall be prohibited. 3a.   Without prejudice to the authorisation requirements pursuant to Regulation (EU) 2021/821, the prohibition in paragraph 1a of this Article shall not apply to the transit via the territory of Russia of dual-use goods and technology intended for the purposes set out in points (a) to (e) of paragraph 3 of this Article. 4a.   By way of derogation from paragraph 1a, and without prejudice to the authorisation requirements pursuant to Regulation (EU) 2021/821, the competent authorities may authorise the transit via the territory of Russia of dual-use goods and technology after having determined that such goods or technology are intended for the purposes set out in points (b), (c), (d), and (h) of paragraph 4 of this Article.’

(3) in Article 2aa, the following paragraph is inserted: ‘1a.   The transit via the territory of Russia of firearms, their parts and essential components and ammunition, as referred to in paragraph 1, exported from the Union shall be prohibited.’

(4) in Article 3c, the following paragraph is added: ‘5c.   With regard to the goods listed in Part D of Annex XI, the prohibitions in paragraphs 1 and 4 shall not apply to the execution until 27 March 2023 of contracts concluded before 26 February 2023, or of ancillary contracts necessary for the execution of such contracts.’

(5) in Article 3d, the following paragraphs are added: ‘5.   Aircraft operators of non-scheduled flights between Russia and the Union, operated directly or via a third country, shall notify all relevant information concerning the flight to their competent authorities prior to their operation, and at least 48 hours in advance.

(11) in Article 5aa, paragraph 3a is replaced by the following: ‘3a.   By way of derogation from paragraph 1, the competent authorities may authorise, under such conditions as they deem appropriate, transactions which are strictly necessary for the divestment and withdrawal by 31 December 2023, by the entities referred to in paragraph 1 or their subsidiaries in the Union from a legal person, entity or body established in the Union.’

(14) in Article 12b, paragraph 3 is replaced by the following: ‘3.   The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraph 1, 2 or 2a within two weeks of the authorisation.’

(15) the following Articles are inserted: ‘Article 12d The prohibitions on providing technical assistance laid down in this Regulation shall not apply to the provision of pilot services to vessels in innocent passage as defined by international law which are necessary for reasons of maritime safety.

Article 12e

(*12)  Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ L 269, 10.10.2013, p. 1).’;"

(16) Annex IV is amended in accordance with Annex I to this Regulation;

(17) Annex VII is amended in accordance with Annex II to this Regulation;

(18) Annex VIII is amended in accordance with Annex III to this Regulation;

(19) Annex XI is amended in accordance with Annex IV to this Regulation;

(20) Annex XV is amended in accordance with Annex V to this Regulation. Point 20 shall apply in respect of one or several of the entities referred to in Annex V to this Regulation as from 10 April 2023 and provided that the Council, having examined the respective cases, so decides by implementing act;

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

(22) Annex XXIII is amended in accordance with Annex VII 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.

Article 1 , point (8), shall apply from 27 April 2023.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 25 February 2023.

For the Council The President J. ROSWALL

(1) See page 593 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).