The articles 1k.2 of Decision 2014/512/CFSP [1] and 5n.2 of the EU Regulation 833/2014 [2] prohibit the provision of legal assistance to the Government of Russia and to legal persons, entities and bodies established in Russia. This prohibition was appealed by ACE (Avocats Ensemble) and Lupicinio Rodríguez Jiménez the 23 December 2022, which led to the Case 828/22.
However, there is a series of exceptional circumstances in which it is allowed to provide such services, where the assistance provided:
- Is strictly necessary for the resolution, by 8 January 2023 at the latest, of contracts not in conformity with this Article concluded before 7 October 2022 and of ancillary contracts necessary for the performance of such contracts.
- Is strictly necessary for the exercise of the rights of the defence in judicial procedures and of the right to effective judicial protection.
- Is strictly necessary to guarantee the access to judicial, administrative or arbitration proceedings in a Member State, as well as for the recognition or enforcement of a sentence or an arbitration award established by a Member State.
- Is exclusively intended for the exclusive use of legal persons, entities and bodies established in Russia, owned or controlled individually or jointly by a legal person, entity or body that is incorporated or constituted according to the Law of a Member State, a member country of the Economic European Area, Switzerland or one of the partner countries listed in the Annex VIII.
In such cases, the European legislation does not require any requirement or condition, such as obtaining prior administrative authorisation, for the charging in the territory of the Union of the amounts derived from the provision of services that are legally authorised.
In this regard, we must bear in mind that Article 1k(9) and (10) of the Decision 2014/512/CFSP and Article 5n(9a) and (10) of the EU Regulation 833/2014 list a series of cases in which the competent national authorities can authorise the provision of services that are in principle affected by the prohibition of the respective paragraphs 2. The cases are the following:
- Where the competent authorities have determined that the services are strictly necessary for the certification, establishment or assessment of a firewall that:
- Removes control, by a natural or legal person, entity or body listed in the Annex 1 on Regulation (EU) 269/2014, over the assets of a legal person, entity or body not included in the list, owned by a listed person.
- Ensures that not further funds or economic resources for the benefit of the natural or legal person, entity or body included in the list.
- Where the competent authorities have determined that the provision of services is necessary for humanitarian purposes, civil society activities that promote democracy or human rights, the security of essential supply of energy within the European Union, the creation, use, maintenance, supply and reprocessing of fuel, etc.
Nevertheless, the aforementioned articles mention nothing about whether the national authorities should intervene in any manner in cases where the provision of services is authorised by their own regulations.
The fact that, in one Member State of the European Union, such as the case of Italy, the administration issues a document on the basis of which the incoming payments can be made does not mean that that a similar document must exist in the other Member States of the Union. The solution adopted in Italy, although it could reinforce the legal security, is a new obstacle to the freedom to provide professional services and a form of bureaucratic interference in the Right of Defence. Certainly and, as a consequence, no obligation arises from European law for Spain, or for any other Member State, to provide a similar document to the “Italian” one.
[1] It shall be prohibited to provide, directly or indirectly, architecture, engineering, legal assistance and computer consultancy services:
a) to the Russian Government or
b) to legal persons, entities or bodies established in Russia.
[2] Ibid.
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Lupicinio International Law Firm
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28001 Madrid
P: +34 91 436 00 90
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