Council Regulation (EU) 2024/1865 of 29 June 2024 amending Regulation (EC) No 765/2006 concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against 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) 2024/1864 of 29 June 2024 amending Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against 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 18 May 2006, the Council adopted Regulation (EC) No 765/2006 (2).

(2) Regulation (EC) No 765/2006 gives effect to the measures provided for in Council Decision 2012/642/CFSP (3).

(3) On 29 June 2024, the Council adopted Decision (CFSP) 2024/1864.

(4) Decision (CFSP) 2024/1864 further extends the export ban on dual-use and advanced goods and technologies and introduces further export restrictions on goods which could contribute in particular to the enhancement of Belarusian industrial capacities.

(5) Furthermore, in order to minimise the risk of circumvention of restrictive measures, Decision (CFSP) 2024/1864 prohibits the transit via the territory of Belarus of dual-use goods and technology, goods and technology which might contribute to Belarus’s military and technological enhancement or to the development of its defence and security sector, goods which could contribute in particular to the enhancement of Belarusian industrial capacities, goods and technology suited for use in aviation or the space industry, and arms exported from the Union.

(6) Decision (CFSP) 2024/1864 imposes further restrictions on exports to Belarus, in particular concerning maritime navigation goods and technology and luxury goods.

(7) Decision (CFSP) 2024/1864 also imposes a prohibition on the direct or indirect import, purchase or transfer of diamonds from Belarus, which applies to diamonds originating in Belarus, diamonds exported from Belarus and diamonds transiting Belarus. That prohibition applies to non-industrial natural and synthetic diamonds as well as to diamond jewellery.

(8) Moreover, Decision (CFSP) 2024/1864 enlarges the import ban on mineral products to include crude oil and introduces a new export ban on goods and technology suitable for use in oil refining and liquefaction of natural gas.

(9) This Regulation should clarify that the prohibitions relating to oil are without prejudice for the time being to the transit through Belarus of crude oil which is delivered by pipeline from Russia into Member States.

(10) Furthermore, Decision (CFSP) 2024/1864 prohibits the provision of certain services to the Republic of Belarus, its Government, its public bodies, corporations or agencies or to any natural or legal person, entity or body acting on their behalf or at their direction by prohibiting the provision of accounting services, auditing services, including statutory audit, bookkeeping services, tax consulting services, business and management consulting, and public relations services.

(11) Pursuant to Annex II to Regulation (EC) No 184/2005 of the European Parliament and of the Council (4), accounting, auditing, bookkeeping and tax consultancy services cover the recording of commercial transactions for businesses and others, examination services regarding accounting records and financial statements, business tax planning and consulting, and the preparation of tax documents. Business and management consulting and public relations services cover advisory, guidance and operational assistance services provided to businesses for business policy and strategy and the overall planning, structuring and control of an organisation. Management fees, management auditing, market management, human resources, production management and project management consulting, and advisory, guidance and operational services related to improving the image of clients and their relations with the general public and other institutions are also included.

(12) Furthermore, Decision (CFSP) 2024/1864 prohibits the provision of architectural and engineering services as well as of IT consultancy services and legal advisory services to Belarus. In line with the Central Products Classification set out by the Statistical Office of the United Nations in 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 Belarus continues to be 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. Also in line with that Central Products Classification, ‘IT consultancy services’ covers consultancy services related to the installation of computer hardware, including assistance services to clients in the installation of computer hardware, consisting of physical equipment, and computer networks, and software implementation services, including all services involving consultancy services on the development of and implementation of software. In line with that same classification, ‘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 the preparation, execution and verification of legal documents. However, ‘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.

(13) Decision (CFSP) 2024/1864 also prohibits the provision of certain services to the Republic of Belarus, its Government, its public bodies, corporations or agencies or to any natural or legal person, entity or body acting on their behalf or at their direction by banning the provision of advertising, market research and public opinion polling services, as well as product testing and technical inspection services. In line with the Central Products Classification set out by the Statistical Office of the United Nations in Statistical Papers, Series M, No 77, CPC prov., 1991, ‘Market research and public opinion polling services’ covers market research services and public opinion polling services. Also in line with that Central Products Classification, ‘technical testing and analysis services’ covers composition and purity testing and analysis services, testing and analysis services of physical properties, testing and analysis services of integrated mechanical and electrical systems, technical inspection services, as well as other technical testing and analysis services. The provision of technical assistance related to goods exported to Belarus continues to be 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. In line with that same classification, ‘advertising services’ covers sale or leasing services relating to advertising space or time, services relating to the planning, creating and placement of advertising, and other advertising services.

(14) Decision (CFSP) 2024/1864 also introduces derogations required for the setting-up, certification or evaluation of a firewall removing the control exercised by a listed person over the assets of a non-listed Union entity which the listed person owns or controls, and ensuring that no benefit accrues to the latter, thus allowing that entity to continue its business operations.

(15) In order to ensure alignment with the interpretation of the Court of Justice of the European Union in Case C-72/11, Decision (CFSP) 2024/1864 amends the provision prohibiting circumvention to clarify that the requirements of knowledge and intent are met not only where a person deliberately seeks the object or effect of circumventing restrictive measures but also where a person participating in an activity having the object or effect of circumventing restrictive measures is aware that such participation may have that object or that effect, and accepts that possibility.

(16) With a view to increasing awareness of enforcement action, it is appropriate that Member States report about penalties imposed for violations of the restrictive measures.

(17) In line with the Union’s common foreign and security policy objectives of preserving peace, reinforcing international security and promoting international cooperation, democracy and the rule of law, and more specifically the objectives pursued by Decision 2012/642/CFSP, it is appropriate to ensure that the documents held by the Council, the Commission and the High Representative of the Union for Foreign Affairs and Security Policy (‘the High Representative’) concerning the enforcement of the restrictive measures set out in Regulation (EC) No 765/2006, or concerning the prevention of the violation or circumvention of those measures, are subject to professional secrecy and enjoy the protection afforded by the rules applicable to the Union institutions, since information contained in those documents could be used to obstruct the enforcement of those measures or to compromise their effectiveness, given that the persons and entities concerned could act in such a way as to prevent their enforcement. That protection should also be ensured for joint proposals from the High Representative and the Commission for the amendment of Regulation (EC) No 765/2006 and any related preparatory documents, as their disclosure might affect the effectiveness of the measures set out in Regulation (EC) No 765/2006 and the preparation of, and negotiation on the basis of, future proposals. Certain measures which are included in such proposals, and which cannot be adopted by the Council for various reasons, are often included by the High Representative and the Commission in subsequent proposals. It is important to protect that power of initiative from any influence exerted by public or private interests that attempt, outside of organised consultations, to compel the Union institutions and Union services to propose, adopt, amend or agree on an amendment. Their disclosure could render the possible new measures ineffective due to the fact that their intended adoption would have already been revealed. Thus, it should be presumed that disclosure of those documents would harm the security of the Union or that of one or more of its Member States or the conduct of their international relations.

(18) Furthermore, Decision (CFSP) 2024/1864 introduces an import ban on goods which allow Belarus to diversify its sources of revenue, thereby enabling its involvement in the Russian aggression against Ukraine. That prohibition includes coal and other products.

(19) In addition, Decision (CFSP) 2024/1864 permits Member States to allow the entry into the Union of personal effects which do not pose significant circumvention concerns, such as personal hygiene items, or clothing worn by travellers or contained in their luggage, and which are clearly intended for their or their family members’ strict personal use. It also provides for exceptions allowing cars to enter the Union under specific circumstances. The situation of cars from Belarus which are already in the territory of the Union may be regularised by Member States.

(20) Decision (CFSP) 2024/1864 imposes a prohibition on the direct or indirect import, purchase or transfer of gold. That prohibition applies to gold of Belarusian origin, exported from Belarus after the entry into force of this Regulation.

(21) Decision (CFSP) 2024/1864 imposes further restrictive measures in various sectors, particularly in the energy and aviation sectors.

(22) In order to ensure the correct implementation of the measures set out in Regulation (EC) No 765/2006, it is appropriate to extend the exemption from the prohibition on the transport of goods by road transport undertakings established in Belarus to all diplomatic and consular representations in Belarus. Decision (CFSP) 2024/1864 also extends the prohibition on the transport of goods by road in the Union by trailers and semi-trailers registered in Belarus, including when hauled by trucks registered outside of Belarus. In order to minimise the risk of circumvention, Decision (CFSP) 2024/1864 amends the prohibition in Decision 2012/642/CFSP on the transport of goods by road within the territory of the Union, including in transit. Union operators which are owned for 25 % or more by a Belarusian natural or legal person should be prohibited from becoming a road transport undertaking or from transporting goods by road in the Union, including in transit. The prohibition does not apply to road transport undertakings owned by dual nationals or Belarusian nationals having a temporary or permanent residence permit in a Member State. Road transport undertakings should disclose their ownership structure to the national competent authorities, upon their request.

(23) Decision (CFSP) 2024/1864 introduces a further criterion for the listing of natural or legal persons, entities or bodies subject to asset freeze and the prohibition to make funds and economic resources available to designated persons and entities.

(24) Member States and the Commission should inform each other of the measures taken pursuant to this Regulation and of any other relevant information at their disposal in connection with this Regulation.

(25) In order to facilitate divestment from the Belarusian market by Union operators, Decision (CFSP) 2024/1864 introduces temporary derogations from the prohibitions on the import and export of goods and on certain services set out in Regulation (EC) No 765/2006. To facilitate an expeditious exit from the Belarusian market, those derogations are temporary and limited in scope. The divestment derogation from those import and export prohibitions should enable the sale, supply or transfer of certain goods, or their import into the Union, until 2 January 2025 and should apply only to those goods that were already physically located in Belarus at the time when the relevant prohibitions entered into force. The divestment derogation on providing certain services should enable until 2 January 2025 the continuation of the provision of services to and for the exclusive benefit of the legal persons, entities or bodies resulting from divestment. Additionally, national competent authorities should ensure that prohibited goods remaining in Belarus as a result of divestment do not benefit military end-users or have a military-end use and that services are not provided to the Government of Belarus or for the benefit of military end-users and do not have a military-end use.

(26) In order to ensure legal certainty concerning the treatment of imports, Decision (CFSP) 2024/1864 provides for rules on the release by the customs authorities of the Member States of goods which are physically located in the Union and which had already been presented to such customs authorities when they became subject to restrictive measures. The possibility of release of goods applies regardless of the procedures under which the goods were placed after presentation to customs authorities by way of, inter alia, transit, inward processing, or release for free circulation, or of the procedural steps and formalities pursuant to the Union Customs Code necessary for such release. Decision (CFSP) 2024/1864 also authorises Member States to release goods already brought into the Union. That authorisation is necessary for the benefit of the Union operators that brought those goods into the Union in good faith at a time when they were not yet subject to any import-related restrictive measures, including when their import was still allowed during a winding down period. The competent authorities of the Member States should ensure that the release of those goods and any payment related to them comply with the provisions and objectives of the Union’s restrictive measures. Similarly, any decision not to release such goods should comply with the objectives of those measures and ensure, inter alia, that those goods are not returned to Belarus.

(27) Decision (CFSP) 2024/1864 also requires that exporters contractually prohibit the re-exportation to Belarus or re-exportation for use in Belarus of sensitive goods and technology as listed in Annexes XVI, XVII, XXVIII and XXX to Regulation (EC) No 765/2006, common high priority items, or firearms and ammunition as listed in Annex I to Regulation (EU) No 258/2012 of the European Parliament and of the Council (5) (‘no-Belarus clause’).

(28) The Commission will assess the impact that the entry into force of the obligation to use a ‘no-Belarus clause’ has on deterring circumvention. It will also assess very closely trade data, export statistics and other information concerning circumvention patterns regarding those goods, including the role that subsidiaries of Union operators in third countries may play in such patterns. On that basis, the Commission will assess whether the ‘no-Belarus clause’ is fit for purpose and consider any other appropriate actions to curb Belarus’s access to sensitive goods which could be further exported to Russia, thereby enabling the latter to pursue the war in Ukraine, including the possibility of requiring Union operators to ensure that their subsidiaries in third countries also use the ‘no-Belarus clause’.

(29) To help combat the re-exportation of common high priority items, as listed in Annex XXX to Regulation (EC) No 765/2006, found on the battlefield in Ukraine or critical to the development, production or use of Russian military systems, Decision (CFSP) 2024/1864 requires Union operators that are selling, supplying, transferring or exporting common high priority items to third countries, other than the countries listed in Annex Vba to Regulation (EC) No 765/2006, to implement due diligence mechanisms capable of identifying and assessing risks of exportation to Belarus and mitigating such risks. Moreover, Decision (CFSP) 2024/1864 requires Union operators to ensure that legal persons, entities and bodies established outside the Union that they own or control also implement those requirements.

(30) Where Regulation (EC) No 765/2006 requires Union operators to ensure that legal persons, entities and bodies established outside the Union that they own or control conduct certain actions to prevent the exportation or re-exportation of goods or technology to Belarus, such requirements should be pursued to the extent that is permitted by the legislation of the third country where the legal person, entity or body in question is established.

(31) In order to ensure the correct implementation of the measures set out in Regulation (EC) No 765/2006, it is necessary to amend the list of machinery set out in Annex XIV to that Regulation.