ANALYSIS OF SANCTIONS AGAINST RUSSIA WITHIN DE AVIATION SECTOR

European sanctions regarding aviation are provided on the art 4d of the COUNCIL DECISION (CFSP) 2022/327 of 25 February 2022 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine.

Link:

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32022D0327&from=ES

(enclosed also pdf format) council decision 327 2022 25 february 2022

These measures consist of:

  • Prohibited to sell, supply, transfer or export, directly or indirectly, goods and technology suited for use in aviation or the space industry, whether or not originating in the Union, to any natural or legal person, entity or body in Russia or for use in Russia.
  • Prohibited to provide insurance and reinsurance, directly or indirectly, in relation to goods and technology referred to in paragraph 1 to any person, entity or body in Russia or for use in Russia.
  • Prohibited to provide any one or any combination of the following activities: overhaul, repair, inspection, replacement, modification or defect rectification of an aircraft or component, with the exception of pre-flight inspection.
  • Prohibited to provide technical assistance, brokering services or other services related to the goods and technology referred to the provision, manufacture, maintenance, and use of those goods.
  • Prohibited to provide financing or financial assistance related to goods and technology referred for any sale, supply, transfer or export of those goods and technology, or for the provision of related technical assistance, brokering services or other services.

Exporting, insurance and reinsurance services, maintenance, airworthiness assistance, financial assistance and brokering services for the referred purposes are therefore targets of this ban.

It is the responsibility of Russia as the State of Registry or State of the Operator, as the case may be, to decide on necessary actions to safeguard safety of the aircraft registered or operated in Russia.

Russian regulator has just cleared Rossiya Airlines to carry out Boeing, Airbus aircraft maintenance: https://interfax.com/newsroom/top-stories/77258/

Russian underwriters are also in charge of the insurance and reinsurance of the aircrafts and flights, in spite of the airworthiness issues that might arise.

UK shuts out Russian companies from aviation insurance market: https://www.reuters.com/world/uk/uk-shuts-out-russian-companies-insurance-market-2022-03-03/

The prohibitions in paragraphs 1 and 4 shall not apply to the execution until 28 March 2022 of contracts concluded before 26 February 2022, or ancillary contracts necessary for the execution of such contracts.

 

What are brokering services? Definition is provided in the COUNCIL REGULATION (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine.

Link:

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32014R0833&from=EN

(enclosed also pdf format) council decision 833 brokering services

(d)  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.

According to this provision, any assistance to sell of transfer the property of aircraft to a third country is forbidden.

Countries that that might allow Russian flights: Turkey, United Arab Emirates, Egypt, Israel, Azerbaijan, Kazakhstan, Tajikistan Uzbekistan and Armenia: https://www.preferente.com/noticias-de-transportes/noticias-de-aerolineas/rusia-permite-a-azimuth-air-operar-vuelos-internacionales-316768.html

The authorities of these countries might allow a Russian aircraft to overflight and land in one of those countries and get registered there if that aircraft comes from Russia, (so that de-registration can be achieved), and if a permit to fly, (in case the airworthiness of an aircraft is limited for administrative or technical reasons)  or a ferry flight is allowed, provided that the corresponding aircraft insurance is in force and airworthiness is guaranteed, (depending on what the law of application of each country can foresee). But those authorities will have to bear in mind that UE and US Sanctions will be infringed and evaluate the corresponding consequences.

Russian aircraft can fly into European Space in some permitted cases: https://simpleflying.com/russian-ilyushin-76-fly-though-european-airspace/amp/

Finally if an aircraft under a lease agreement with a European lessor leaves the Russian air space, it will be exposed t to the risk of being arrested.

 

Ban over Russia’s air carriers or aircrafts – regardless of their State of registry – from flying into, over or out of the territory of the EU is provided on art 4e and 4f of the Council Decision (CFSP) 2022/335, which further amends Decision 2014/512/CFSP; and Council Regulation (EU) 2022/334, further amending Council Regulation (EU) 833/2014.

Link:

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32022D0335&from=EN

(enclosed also pdf format) council decision 335 2022 ban regarding ue air space

These measures consist of:

Article 4e

  • Ban applicable to any aircraft operated by Russian air carriers, including as a marketing carrier in code-sharing or blocked-space arrangements, to any Russian-registered aircraft, and to any non-Russian-registered aircraft which is owned or chartered, or otherwise controlled by any Russian natural or legal person, entity or body, permission to land in, take off from, or overfly the territory of the Union.
  • Ban not applicable in the case of an emergency landing or an emergency overflight.
  • Ban not applicable if the competent authorities have determined that such landing, take-off or overflight is required for humanitarian purposes or for any other purpose consistent with the objectives of this Decision. (Aircraft repossession of lessor can be included here).
  • Member States concerned shall inform the Commission of any authorisation granted under the exception refereed within two weeks of the authorisation.

Article 4f

  • Eurocontrol shall reject all flight plans filed by aircraft operators indicating an intent to carry out activities over the territory of the Union that constitute a violation of these provisions.
  • Eurocontrol shall regularly supply to the Commission and Member States, based on the analysis of flight plans, reports on the implementation of this measures.

According to this any flight over a EU state is to be reported.

 

EASA additional measures:

Link:

https://www.easa.europa.eu/the-agency/restrictive-measures-russia/notice-stakeholders

  • EASA has taken a decision to suspend all the certificates it has issued, including certificates for products, parts and appliances as well as the certificates for organisations and flight simulation training devices, where the holder of the certificate is located or residing in Russia. EASA has also decided to put on hold, until further notice, all investigations in relation to pending certification applications from organisations and persons located or residing in Russia. EASA will also not accept any new certification applications.
  • List of suspended EASA certificates and approvals enclosed in word format. Link: https://www.easa.europa.eu/downloads/136130/en
  • EASA has suspended until further notice, all third country operator (TCO) authorisations it has issued under Regulation (EU) No 452/2014 to commercial air transport operators for which Russia acts as the State of the Operator.
  • Aircraft operators in respect of which an EU Member State acts as the State of Operator, are prohibited from entering into wet lease, dry lease or code-sharing agreements with aircraft operators of Russia, or with respect to aircraft registered in Russia. Accordingly, such leasing agreements should not be approved by National Competent Authorities in accordance with Regulation (EU) No 965/2012. Any existing wet lease or dry lease approvals or code-sharing agreements with aircraft operators of Russia or with respect to aircraft registered in Russia should be revoked.

 

Measures dictated by the US:

The U.S. Commerce Department, through its Bureau of Industry and Security (BIS), identified commercial and private aircraft that have flown into Russia in apparent violation of the Export Administration Regulations (EAR).  In so doing, BIS is notifying the public that providing any form of service to these aircraft requires authorization. Absent such authorization, any person anywhere—including within Russia—risks violating the EAR and would be subject to BIS enforcement actions which could include substantial jail time, fines, loss of export privileges, or other restrictions.

Link:

https://www.bis.doc.gov/index.php/documents/about-bis/newsroom/press-releases/2935-2022-03-18-bis-list-of-aircraft-violating-the-ear-press-release-final/file

(enclosed also pdf format) BIS afecta a vuelos internacionales desde Rusia

 

THE CHICAGO CONVENTION DISPOSITIONS OF APPLICATION FOR ANY ASSIGNMENT OF OWNERSHIP:

Article 40: Validity of endorsed certificates and licenses: No aircraft or personnel having certificates or licenses so endorsed shall participate in international navigation, except with the permission of the State or States whose territory is entered. The registration or use of any such aircraft, or of any certificated aircraft part, in any State other than that in which it was originally certificated shall be at the discretion of the State into which the aircraft or part is imported.

Finally, sanctions and air space restrictions are covered by a situation of war that entitles the member State to elude the Chicago Convention dispositions, (among them, the prohibition of double registration of aircraft contained in the article 18 of the Chicago convention):

Article 89: War and emergency conditions: In case of war, the provisions of this Convention shall not affect the freedom of action of any of the contracting States affected, whether as belligerents or as neutrals. The same principle shall apply in the case of any contracting State which declares a state of national emergency and notifies the fact to the Council.

But it does not impede that Russia is currently in breach of the Cape Town Convention on International Interests in Mobile Equipment, refusing to return the aircraft under leasing contracts to the lessors.

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