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Council Decision (CFSP) 2023/1218 of 23 June 2023 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine

Council Decision (CFSP) 2023/1218 of 23 June 2023 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article 29 thereof,

Having regard to the proposal from the High Representative of the Union for Foreign Affairs and Security Policy,

Whereas:

  1. On 17 March 2014, the Council adopted Decision 2014/145/CFSP(1).

  2. The Union remains unwavering in its support for Ukraine’s sovereignty and territorial integrity.

  3. In its conclusions of 23 March 2023, the European Council reiterated its resolute condemnation of Russia’s war of aggression against Ukraine, which constitutes a manifest violation of the Charter of the United Nations. The European Council also reiterated that the Union remains committed to maintaining and increasing collective pressure on Russia, including through possible further restrictive measures. The European Council also underlined the importance and urgency of stepping up efforts to ensure the effective implementation of sanctions at European and national level and its firm commitment to effectively preventing and countering their circumvention in and by third countries. It invited the Council and the Commission to strengthen all necessary enforcement instruments and to develop, together with Member States, a fully coordinated approach to that effect.

  4. The Council considers that circumventing the restrictive measures adopted by the Union in response to Russia’s war of aggression against Ukraine, or otherwise significantly frustrating such restrictive measures by third country operators not bound by those measures in such a way as to contribute to Russia’s capacity to wage war, may undermine the purpose and effectiveness of those measures. Indications of cases of frustrating the Union’s restrictive measures could include, inter alia, the fact that the main activity of a third country operator consists of purchasing restricted goods in the Union that reach Russia, the involvement of Russian persons or entities at any stage, the recent creation of a company for purposes related to restricted goods reaching Russia, or a drastic increase in the turnover of a third country operator involved in such activities.

  5. The Council has also assessed that information warfare constitutes a key means by which Russia implements its war of aggression against Ukraine and commits gross violations of international law and the principles of the Charter of the United Nations. Companies in the IT sector that provide critical technology and software to the Russian intelligence community hold a licence from the Federal Security Service of the Russian Federation (FSB), which enables them to work with information at the Russian security level of ‘state secret’. Additionally, such companies often hold a particular ‘weapons and military equipment’ license administered by the Russian Ministry of Industry and Trade. The Council therefore considers that the criteria for designation should be extended in order to cover legal persons, entities, or bodies operating in the Russian IT sector that hold a license administered by the FSB Center for Licensing, Certification, and Protection of State Secrets or a ‘weapons and military equipment’ license administered by the Russian Ministry of Industry and Trade.

  6. Moreover, in view of the gravity of the situation, the Council considers that 71 persons and 33 entities responsible for actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine should be added to the list of persons, entities and bodies subject to restrictive measures set out in the Annex to Decision 2014/145/CFSP.

  7. It is appropriate to extend to two newly listed financial institutions a derogation from the asset freeze and from the prohibition on making funds and economic resources available that was applicable to previously-listed financial institutions pursuant to Decision 2014/145/CFSP. It is also appropriate to introduce a further derogation from the asset freeze and the prohibition on making funds and economic resources available to certain listed entities to allow for divestment from Russian companies and the disposal of certain types of securities held with specified listed entities. It is also appropriate to introduce a derogation allowing for the setting-up, certification or evaluation of a firewall that removes the control exercised by a listed person over the assets of a non-listed Union entity which the listed person owns or controls and that ensures that no benefit accrues to the latter, thus allowing that entity to continue its business operations. With a view to safeguarding maritime safety, it is appropriate to introduce an exemption from the asset freeze and the prohibition on making funds and economic resources available to allow for the provision of pilot services in specific circumstances.

  8. Further action by the Union is needed in order to implement certain measures.

  9. Decision 2014/145/CFSP should therefore be amended accordingly,

HAS ADOPTED THIS DECISION:

Article 1

Decision 2014/145/CFSP is amended as follows:

  1. Article 1 is amended as follows:

    1. in paragraph 1, point (f) is replaced by the following:

      1. natural persons:

        1. facilitating infringements of the prohibition against circumvention of the provisions of this Decision, or of Decisions 2014/386/CFSP(*), 2014/512/CFSP(**), or (CFSP) 2022/266(***), or of Council Regulations (EU) No 269/2014(****), (EU) No 692/2014(*****), (EU) No 833/2014(******) or (EU) 2022/263(*******); or

        2. otherwise significantly frustrating those provisions,

    2. in paragraph 1, the wording ‘and natural persons associated with them, as listed in the Annex.’ is replaced by the following:

      ‘and natural persons associated with them or with the legal persons, entities or bodies listed under Article 2(1)(i), as listed in the Annex.’;

  2. Article 2 is amended as follows:

    1. in paragraph 1, point (h) is replaced by the following:

      1. natural or legal persons, entities or bodies:

        1. facilitating infringements of the prohibition against circumvention of the provisions of this Decision, or of Decisions 2014/386/CFSP, 2014/512/CFSP or (CFSP) 2022/266, or of Regulations (EU) No 269/2014, (EU) No 692/2014, (EU) No 833/2014 or (EU) 2022/263; or

        2. otherwise significantly frustrating those provisions; or’;

    2. in paragraph 1, the following point is added:

      1. legal persons, entities or bodies operating in the Russian IT-sector with a license administered by the Federal Security Service of the Russian Federation (FSB) Center for Licensing, Certification, and Protection of State Secrets or a “weapons and military equipment” license administered by the Russian Ministry of Industry and Trade,’;

    3. the first subparagraph of paragraph 17 is replaced by the following:

      ‘17.

      By way of derogation from paragraphs 1 and 2, the competent authorities of a Member State may authorise the release of certain frozen funds or economic resources belonging to the entities listed under entry numbers 53, 54, 55, 79, 80, 81, 82, 108, 126, 127, 198, 199, 200, 214 and 215 under the heading “Entities” in the Annex, or the making available of certain funds or economic resources to those entities, under such conditions as the competent authorities deem appropriate and after having determined that such funds or economic resources are necessary for the purchase, import or transport of agricultural and food products, including wheat and fertilisers.’

      ;

    4. paragraph 22 is replaced by the following:

      ‘22.

      By way of derogation from paragraphs 1 and 2, the competent authorities of the Member States may, under such conditions as they deem appropriate, authorise the release of certain frozen funds or economic resources belonging to the entities listed under entry numbers 82 and 101 under the heading ‘Entities’ in the Annex, or the making available of certain funds or economic resources to those entities, after having determined that:

      1. such funds or economic resources are necessary for the disposal or the transfer of securities by an entity established in the Union, currently or previously controlled by the entity listed under entry number 82 under the heading ‘Entities’ in the Annex;

      2. such disposal or transfer is completed by 31 December 2023; and

      3. such disposal or transfer is carried out on the basis of operations, contracts or other agreements concluded with, or otherwise involving, the entities listed under entry numbers 82 and 101 under the heading ‘Entities’ in the Annex, before 3 June 2022.’

      ;

    5. the following paragraphs are added:

      ‘24.

      By way of derogation from paragraphs 1 and 2, the competent authorities of a Member State may authorise the release of certain frozen funds or economic resources belonging to the natural person listed under entry number 695 under the heading “Persons” in the Annex, or the making available of certain funds or economic resources to this natural person or an entity owned by this natural person, under such conditions as the competent authorities deem appropriate and after having determined that such funds or economic resources are necessary for the completion of transactions, including sales, which are strictly necessary for the wind-down, by 31 August 2023, of a joint venture or similar legal arrangement established in Russia with this natural person or an entity owned by this natural person before 28 February 2022.

      25.

      By way of derogation from paragraphs 1 and 2, the competent authorities of a Member State may authorise the conversion by 24 December 2023 by nationals or residents of a Member State, or an entity established in the Union, of a depositary receipt with Russian underlying security held with the entity listed under entry number 101 under the heading ‘Entities’ in the Annex for the purpose of selling the underlying security and the making available of funds linked to the conversion of the depositary receipt and to the sale of the underlying security directly or indirectly to that entity in Russia, under such conditions as the competent authorities deem appropriate and after having determined that:

      1. the depositary receipt was issued before 3 June 2022;

      2. the relevant request for authorisation is submitted by 24 September 2023;

      3. the holder of the depositary receipt is able to demonstrate that such conversion is necessary for the sale of the underlying security;

      4. the sale of the underlying security is compliant with the prohibition under Decision 2014/512/CFSP, including Articles 1 and 1d thereof;

      5. no funds will be made available to any other entity listed in the Annex.

      26.

      By way of derogation from paragraphs 1 and 2, the competent authorities of a Member State may authorise the release of certain frozen funds or economic resources belonging to, owned, held or controlled by a natural or legal person, entity or body listed in the Annex, or the provision of services to such a natural or legal person, entity or body, under such conditions as they deem appropriate and after having determined that this is strictly necessary for the setting-up, certification or evaluation of a firewall which:

      1. removes the control by the natural or legal person, entity or body listed in the Annex over the assets of a non-listed legal person, entity or body incorporated or constituted under the law of a Member State and which is owned or controlled by the former, and

      2. ensures that no further funds or economic resources accrue for the benefit of the listed natural or legal person, entity or body.

      27.

      The prohibitions set out in paragraphs 1 and 2 shall not apply to funds or economic resources that are needed for the provision of pilot services to vessels in innocent passage as defined by international law which are necessary for reasons of maritime safety.’

      ;

  3. the Annex to Decision 2014/145/CFSP is amended in accordance with the Annex to this Decision.

Article 2

This Decision shall enter into force on the date of its publication in the Official Journal of the European Union.

Done at Brussels, 23 June 2023.

For the Council

The President

J. Roswall