Donetsk / Luhansk - Regulation 2022/263

Council Regulation (EU) 2022/263 of 23 February 2022 concerning restrictive measures in response to the illegal recognition, occupation or annexation by the Russian Federation of certain non-government controlled areas of Ukraine

Article 1

For the purposes of this Regulation, the following definitions apply:

(a) ‘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;

(b) ‘claim’ means any claim, whether or not asserted by legal proceedings, made before or after 24 February 2022, under or in connection with a contract or transaction, and includes in particular:

(i) a claim for performance of any obligation arising under or in connection with a contract or transaction;

(ii) a claim for extension or payment of a bond, financial guarantee or indemnity of whatever form;

(iii) a claim for compensation in respect of a contract or transaction;

(iv) a counterclaim;

(v) a claim for the recognition or enforcement, including by the procedure of exequatur, of a judgment, an arbitration award or an equivalent decision, wherever made or given;

(c) ‘contract or transaction’ means any transaction of whatever form, whatever the applicable law, and whether comprising one or more contracts or similar obligations made between the same or different parties; for this purpose ‘contract’ includes a bond, guarantee or indemnity, particularly a financial guarantee or financial indemnity, and credit, whether legally independent or not, as well as any related provision arising under, or in connection with, the transaction;

(d) ‘specified territories’ means the non-government controlled areas of Ukraine in the oblasts of Donetsk, Kherson, Luhansk and Zaporizhzhia.

(e) ‘entity in the specified territories’ means any entity having its registered office, central administration or principal place of business in the specified territories, its subsidiaries or affiliates under its control in the specified territories, as well as branches and other entities operating in the specified territories;

(f) ‘goods originating in the specified territories’ means goods which are wholly obtained in the specified territories or which have undergone their last substantial transformation there, in accordance, mutatis mutandis , with Article 60 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code;

(g) ‘investment services’ means the following services and activities:

(i) reception and transmission of orders in relation to one or more financial instruments,

(ii) execution of orders on behalf of clients,

(iii) dealing on own account,

(iv) portfolio management,

(v) investment advice,

(vi) underwriting of financial instruments and/or placing of financial instruments on a firm commitment basis,

(vii) placing of financial instruments without a firm commitment basis,

(h) ‘technical assistance’ means any technical support related to repairs, development, manufacture, assembly, testing, maintenance or any other technical service, and may take forms such as instruction, advice, training, transmission of working knowledge or skills or consulting services; technical assistance includes verbal forms of assistance;

(i) ‘territory of the Union’ means the territories of the Member States to which the Treaty is applicable, under the conditions laid down in the Treaty, including their airspace;

(j) ‘competent authorities’ means the competent authorities of the Member States as identified on the websites listed in Annex I.

Article 2

1.   It shall be prohibited:

(a) to import into the European Union goods originating in the specified territories;

(b) to provide, directly or indirectly, financing or financial assistance as well as insurance and reinsurance related to the import of the goods referred to in point (a).

2.   The prohibitions in paragraph 1 shall not apply in respect of:

(a) the execution until 24 May 2022 of trade contracts concluded before 23 February 2022, or of ancillary contracts necessary for the execution of such contracts, provided that the natural or legal person, entity or body seeking to perform the contract has notified, at least 10 working days in advance, the activity or transaction to the competent authority of the Member State in which they are established;

(b) goods originating in the specified territories which have been made available to the Ukrainian authorities for examination, for which compliance with the conditions conferring entitlement to preferential origin has been verified and for which a certificate of origin has been issued in accordance with the EU-Ukraine Association Agreement.

Article 3

1.   It shall be prohibited to:

(a) acquire any new, or extend any existing participation in ownership of, real estate located in the specified territories;

(b) acquire any new, or extend any existing participation in ownership or control of, entities in the specified territories, including the acquisition in full of such an entity or the acquisition of shares therein, and other securities of a participating nature of such an entity;

(c) grant or be part of any arrangement to grant any loan or credit or otherwise provide financing, including equity capital, to an entity in the specified territories, or for the documented purpose of financing such an entity;

(d) create any joint venture in the specified territories or with an entity in the specified territories;

(e) provide investment services directly related to the activities referred to in points (a) to (d).

2.   The prohibitions and restrictions set out in this Article shall not apply to the conduct of legitimate business with entities outside the specified territories, provided the related investments are not destined to entities in the specified territories.

3.   The prohibitions in paragraph 1 shall be without prejudice to the execution of an obligation arising from a contract concluded before 23 February 2022, or from ancillary contracts necessary for the execution of such a contract, provided that the competent authority has been informed at least five working days in advance.

Article 4

1.   It shall be prohibited to sell, supply, transfer or export goods and technology listed in Annex II:

(a) to any natural or legal person, entity or body in the specified territories, or

(b) for use in the specified territories.Annex II shall include certain goods and technologies suited for use in the following key sectors:

(i) transport;

(ii) telecommunications;

(iii) energy;

(iv) the prospecting, exploration and production of oil, gas and mineral resources.

2.   It shall be prohibited to:

(a) provide, directly or indirectly, technical assistance or brokering services related to the goods and technology listed in Annex II, or related to the provision, manufacture, maintenance and use of such items to any natural or legal person, entity or body in the specified territories or for use in the specified territories;

(b) provide, directly or indirectly, financing or financial assistance related to the goods and technology listed in Annex II to any natural or legal person, entity or body in the specified territories or for use in the specified territories.

3.   The prohibitions in paragraphs 1 and 2 shall be without prejudice to the execution until 24 August 2022 of an obligation arising from a contract concluded before 23 February 2022, or from ancillary contracts necessary for the execution of such contracts, provided that the competent authority has been informed at least five working days in advance.

Article 4a

1.   The prohibitions set out in Article 4 shall not apply to:

(a) the sale, supply, transfer or export of goods or technology listed in Annex II;

(b) the provision, directly or indirectly, of technical assistance or brokering services related to goods and technology listed in Annex II or related to the provision, manufacture, maintenance and use of such items; or

(c) the provision, directly or indirectly, of financing or financial assistance related to goods and technology listed in Annex II, to any natural or legal person, entity or body in the specified territories or for use in the specified territories by:

— public bodies or legal persons, entities or bodies which receive public funding from the Union or Member States, provided that such goods, technology, services and assistance are necessary for exclusively humanitarian purposes in the specified territories;

— organisations and agencies which are pillar-assessed by the Union and with which the Union has signed a financial framework partnership agreement on the basis of which the organisations and agencies act as humanitarian partners of the Union, provided that such goods technology, services and assistance are necessary for exclusively humanitarian purposes in the specified territories;

— organisations and agencies to which the Union has granted the Humanitarian Partnership Certificate or which are certified or recognised by a Member State in accordance with national procedures, provided that such goods, technology, services and assistance are necessary for exclusively humanitarian purposes in the specified territories; or

— Member States’ specialised agencies, provided that such goods, technology, services and assistance are necessary for exclusively humanitarian purposes in the specified territories.

2.   By way of derogation from Article 4, in cases not covered by paragraph 1 of this Article, the competent authorities may grant specific or general authorisations, under such general and specific terms and conditions they deem appropriate, for:

(a) the sale, supply, transfer or export of goods or technology listed in Annex II;

(b) the provision, directly or indirectly, of technical assistance or brokering services related to goods and technology listed in Annex II or related to the provision, manufacture, maintenance and use of such items; or

(c) the provision, directly or indirectly, of financing or financial assistance related to goods and technology listed in Annex II,

to any natural or legal person, entity or body in the specified territories or for use in the specified territories, provided that such goods, technology, services and assistance are necessary for exclusively humanitarian purposes in the specified territories.

3.   The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraph 2 within two weeks of the authorisation.

4.   Nothing in this Article shall affect compliance with Council Regulation (EU) No 269/2014.

Article 5

1.   It shall be prohibited to provide technical assistance, or brokering, construction or engineering services directly relating to infrastructure in the specified territories in the sectors referred to in Article 4(1) as defined on the basis of Annex II, independently of the origin of the goods and technology.

2.   The prohibition in paragraph 1 shall be without prejudice to the execution until 24 August 2022 of an obligation arising from a contract concluded before 23 February 2022, or from ancillary contracts necessary for the execution of such a contract.

3.   It shall be prohibited to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent the prohibitions referred to in paragraphs 1 and 2.

Article 5a

1.   The prohibitions set out in Article 5(1) shall not apply to the provision of technical assistance, or brokering, construction or engineering services directly relating to infrastructure in the specified territories in the sectors referred to in Article 4(1) as defined on the basis of Annex II, independently of the origin of the goods and technology, by:

(a) public bodies or legal persons, entities or bodies which receive public funding from the Union or Member States, provided that such assistance and services are necessary for exclusively humanitarian purposes in the specified territories;

(b) organisations and agencies which are pillar-assessed by the Union and with which the Union has signed a financial framework partnership agreement on the basis of which the organisations and agencies act as humanitarian partners of the Union, provided that such assistance and services are necessary for exclusively humanitarian purposes in the specified territories;

(c) organisations and agencies to which the Union has granted the Humanitarian Partnership Certificate or which are certified or recognisedby a Member State in accordance with national procedures, provided that such assistance and services are necessary for exclusively humanitarian purposes in the specified territories; or

(d) Member States’ specialised agencies, provided that such assistance and services are necessary for exclusively humanitarian purposes in the specified territories.

2.   By way of derogation from Article 5(1), in cases not covered by paragraph 1 of this Article, the competent authorities may grant specific or general authorisations, under such general and specific terms and conditions as they deem appropriate, for the provision of technical assistance, or brokering, construction or engineering services directly relating to infrastructure in the specified territories in the sectors referred to in Article 4(1) as defined on the basis of Annex II, independently of the origin of the goods and technology, provided that such assistance and services are necessary for exclusively humanitarian purposes in the specified territories.

3.   The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraph 2 within two weeks of the authorisation.

4.   Nothing in this Article shall affect compliance with Regulation (EU) No 269/2014.

Article 6

1.   It shall be prohibited to provide services directly related to tourism activities in the specified territories.

2.   The prohibition in paragraph 1 shall be without prejudice to the execution until 24 August 2022 of an obligation arising from a contract or an ancillary contract concluded before 23 February 2022, or from ancillary contracts necessary for the execution of such contracts, provided that the competent authority has been informed at least five working days in advance.

Article 7

1.   The competent authorities may grant, under such terms and conditions as they deem appropriate, an authorisation in relation to the activities referred to in Articles 3(1) and 4(2), and to the goods and technology referred to in Article 4(1), provided that they are:

(a) necessary for official purposes of consular missions or international organisations enjoying immunities in accordance with international law located in the specified territories;

(b) related to projects exclusively in support of hospitals or other public health institutions providing medical services or civilian education establishments located in the specified territories; or

(c) appliances or equipment for medical use.

2.   The competent authorities may also grant, under such terms and conditions as they deem appropriate, an authorisation in relation to the activities referred to in Article 3(1), provided that the transaction is for the purpose of maintenance in order to ensure the safety of existing infrastructure.

3.   The competent authorities may also grant, under such terms and conditions as they deem appropriate, an authorisation in relation to the activities referred to in Articles 3(1) and 4(2), and to the goods and technology referred to in Article 4(1) and to the services referred to in Article 5, where the sale, supply, transfer or export of the items or the carrying out of those activities is necessary for the urgent prevention or mitigation of an event likely to have a serious and significant impact on human health and safety, including the safety of existing infrastructure, or the environment. In duly justified cases of emergency, the sale, supply, transfer or export may proceed without prior authorisation, provided that the exporter notifies the competent authority within five working days after the sale, supply, transfer or export has taken place, providing detail about the relevant justification for the sale, supply, transfer or export without prior authorisation.

The Commission and the Member States shall inform each other of the measures taken under this paragraph and share any other relevant information at their disposal.

Article 8

It shall be prohibited to participate, knowingly and intentionally, including indirectly, in activities the object or effect of which is to circumvent the prohibitions laid down in this Regulation.

Article 9

Actions by natural or legal persons, entities or bodies shall not give rise to any liability of any kind on their part if they did not know, and had no reasonable cause to suspect, that their actions would infringe the measures set out in this Regulation.

Article 10

1.   No claims in connection with any contract or transaction the performance of which has been affected, directly or indirectly, in whole or in part, by the measures imposed under this Regulation, including claims for indemnity or any other claim of this type, such as a claim for compensation or a claim under a guarantee, particularly a claim for extension or payment of a bond, guarantee or indemnity, particularly a financial guarantee or financial indemnity, of whatever form, shall be satisfied, if they are made by:

(a) designated natural or legal persons, entities or bodies listed in Annex I to Council Regulation (EU) No 269/2014 ( ³ );

(b) any natural or legal person, entity or body acting through or on behalf of one of the persons, entities or bodies referred to in point (a);

(c) any natural or legal person, entity or body which has been found by an arbitral, judicial or administrative decision to have infringed the prohibitions set out in this Regulation;

(d) any natural or legal person, entity or body, if the claim relates to goods the import of which is prohibited under Article 2(1).

2.   In any proceedings for the enforcement of a claim, the onus of proving that satisfying the claim is not prohibited by paragraph 1 shall be on the natural or legal person, entity or body seeking the enforcement of that claim.

3.   This Article is without prejudice to the right of natural or legal persons, entities or bodies referred to in paragraph 1 to judicial review of the legality of the non-performance of contractual obligations in accordance with this Regulation.

Article 11

1.   The Commission and the Member States shall inform each other of the measures taken under this Regulation and share any other relevant information at their disposal in connection with this Regulation, in particular information in respect of violation and enforcement problems and judgments handed down by national courts.

2.   The Member States shall immediately inform each other and the Commission of any other relevant information at their disposal which might affect the effective implementation of this Regulation.

Article 12

The Commission shall be empowered to amend Annex I on the basis of information supplied by Member States.

Article 13

1.   Member States shall lay down the rules on penalties applicable to infringements of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.

2.   Member States shall notify the rules referred to in paragraph 1 to the Commission without delay after the entry into force of this Regulation and shall notify it of any subsequent amendment.

Article 14

1.   Member States shall designate the competent authorities referred to in this Regulation and identify them on the websites listed in Annex I. Member States shall notify the Commission of any changes in the addresses of their websites listed in Annex I.

2.   Member States shall notify the Commission of their competent authorities, including the contact details of those competent authorities, without delay after the entry into force of this Regulation, and shall notify it of any subsequent amendment.

3.   Where this Regulation sets out a requirement to notify, inform or otherwise communicate with the Commission, the address and other contact details to be used for such communication shall be those indicated in Annex I.

Article 15

This Regulation shall apply:

(a) within the territory of the Union, including its airspace;

(b) on board any aircraft or any vessel under the jurisdiction of a Member State;

(c) to any person inside or outside the territory of the Union who is a national of a Member State;

(d) to any legal person, entity or body, inside or outside the territory of the Union, which is incorporated or constituted under the law of a Member State;

(e) to any legal person, entity or body in respect of any business done in whole or in part within the Union.

Article 16

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union .

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Annex I - Websites for information on the competent authorities of the Member States and the address for notification to the European Commission

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Annex II - List of goods and technology referred to in Article 4

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Initial Version

Council Regulation (EU) 2022/263 of 23 February 2022 concerning restrictive measures in response to the recognition of the non-government controlled areas of the Donetsk and Luhansk oblasts of Ukraine and the ordering of Russian armed forces into those areas

Official Journal of the European Union LI 42 of 23 February 2022 ,p. 77

Amended by

Commission Implementing Regulation (EU) 2022/595 of 11 April 2022 amending certain Regulations concerning restrictive measures and setting out a single list for the Annexes to those Regulations containing the contact details of Member States’ competent authorities and the address for notifications to the European Commission	Official Journal of the European Union L 114 of 12 April 2022 ,p. 60
Council Regulation (EU) 2022/626 of 13 April 2022 amending Regulation (EU) 2022/263 concerning restrictive measures in response to the recognition of the non-government controlled areas of the Donetsk and Luhansk oblasts of Ukraine and the ordering of Russian armed forces into those areas	Official Journal of the European Union L 116 of 13 April 2022 ,p. 3
Council Regulation (EU) 2022/1903 of 6 October 2022 amending Regulation (EU) 2022/263 concerning restrictive measures in response to the recognition of the non-government controlled areas of the Donetsk and Luhansk oblasts of Ukraine and the ordering of Russian armed forces into those areas	Official Journal of the European Union LI 259 of 6 October 2022 ,p. 1