Authors: José Luis Iriarte and Lupicinio Rodríguez Jiménez
1.- The Official Journal of the European Union of 3 June published the various regulations that articulate the sixth package of sanctions that the European Union has imposed on the Russian Federation. It should be noted that the same OJEU also published a new round of sanctions against Belarus, a country that has been subject to significant restrictions by the EU through successive regulations. These latter sanctions are little talked about, since all the attention is focused on the restrictions on Russia, but they are also of considerable importance and impact on trade relations with Belarus, a country that is also suffering serious US sanctions.
2.- Beforehand, it should be stressed that the adoption of this sixth package of sanctions by the European authorities has taken a long time and has given rise to arduous negotiations, in which several Member States have expressed their opposition to them for economic, technical or political reasons and have even managed to reduce them in some specific aspects or subject them to long transitional periods. All this highlights the fact that sanctions against Russia are also seriously damaging the economies of European states and even raising serious doubts among citizens and governments as to whether sanctions are the right way to solve Ukraine’s problems.
3.- The sixth package is essentially made up of two sets of rules. The main one is Decision (CFSP) 2022/884 and Regulation (EU) 2022/879, both of 3 June. The main sanctions contained in these rules are as follows.
4.- Oil. Firstly, it is prohibited to purchase, import or transfer, directly or indirectly, crude oil or certain petroleum products if they originate in Russia or are exported from Russia. Furthermore, it is prohibited to provide technical assistance, financing and brokering services or any other service related to such goods, and also to insure or reinsure the maritime transport of such goods to third countries. At first glance, it may seem that this sanction is very serious and will have far-reaching consequences. However, it is necessary to note – albeit slightly – the exceptions that the rules themselves provide for. Firstly, there are two transitional periods, one until 5 December 2022 for goods falling within CN code 2709 00, and another until 5 February 2023 for goods falling within CN code 2710, in which one-off short-term delivery operations, concluded and executed before these dates or contracts concluded before 4 June 2022 and notified to the Commission, may be executed.
The ban also does not apply if the crude oil or petroleum products originate in a third country and have only transited through Russia and if the origin and owner of the goods are not Russian. According to Reuteurs, the EU imported 2.2 million barrels per day (bpd) of crude in 2021, including 0.7 million bpd via pipeline – that is, in 2021 the percentage supplied by pipeline was 32% crude oil. Finally, it should be noted that the ban does not apply where crude oil falling within CN code 2709 00 is supplied by pipeline from Russia to the Member States. In addition, certain particularities are laid down for Bulgaria, Croatia and the Czech Republic.
5.a.- Banking and services. In addition, the provision of Swift services to three major Russian banks: Sberbank, Credit Bank of Moscow and Joint Stock Company Russian Agricultural Bank (JSC Rosselkhozbank). .
A new prohibition that raises serious doubts as to its scope and even its legality is that it is prohibited to provide, directly or indirectly, accounting, auditing, including statutory auditing, bookkeeping and tax consultancy services, or business and management consultancy services or public relations services to the Russian Government or to legal persons, entities or bodies established in Russia. However, paragraph 1 shall not apply to the supply of services intended for the exclusive use of legal persons, entities or bodies established in Russia which are owned or controlled either individually or jointly by a legal person, entity or body which is incorporated or constituted under the law of a Member State.
5.b.- Doubts about their legality. However, this prohibition does not apply to the provision of services that are strictly necessary for the exercise of the right of defence in legal proceedings and the right to effective judicial protection. These services will also be authorised for civil society activities directly promoting democracy, human rights or the rule of law in Russia and for humanitarian purposes. We believe that this exception should be interpreted and applied in an expansive and generous manner, since the right to effective judicial protection is a fundamental right enshrined, among other national and international texts, in the Constitutions of the Member States and in the Charter of Fundamental Rights of the European Union and repeatedly endorsed by the European Court of Human Rights and the Court of Justice of the European Union. Consequently, we understand that when it comes to providing legal services in the broadest sense (tax advice or advice in any other sector of the legal system, legal auditing, advice in relation to procedures, etc.) the prohibition on providing services must be applied with great caution and in general in such a way that the fundamental right to effective judicial protection is undisputedly prioritised.
6.- Finally, it should be noted that more than 90 entities are included in the list of subjects subject to special restrictions on the supply of dual-use goods and technologies, and the list of goods and technologies that can contribute to the technological development of the Russian defence sector is significantly extended, especially with regard to chemical products.
7.- Three Russian media outlets are also included in the list of entities whose broadcasting activities in the European Union or directed to its territory are suspended, although they may continue to carry out other activities.
For their part, Decision (CFSP) 2022/883 and Implementing Regulation (EU) 2022/878, both of 3 June, concerning the “adoption of restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine”, have included 66 natural persons, mainly military personnel, politicians, businessmen and persons related to them, and 17 legal persons, mainly companies in the defence sector or related to defence and a financial institution holding securities, in their annexes.
In conclusion, we can say that we are faced with an extensive and important package of sanctions, which comes on top of the previous ones and touches on very sensitive sectors such as oil and its derivatives, which raises serious doubts about the legality and interpretation of some of its extremes and whose real effectiveness we doubt.
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