Since the publication of our 9 March 2022 client alert, the US, UK and EU and other allied nations have imposed additional sanctions and export controls on key elements of the Russian economy. This client alert summarizes the UK and EU’s latest actions, which have been closely coordinated.
UK Chancellor Rishi Sunak has urged firms “to think very carefully about their investments in Russia … there is no case for new investment in Russia.”
The European Commission’s President Ursula von der Leyen made clear that the EU would “continue to work in lockstepto ramp up the economic pressure against the Kremlin.”
On 11 March 2022, a number of additional measures were announced in a joint statement by the leaders of the G-7. The majority of those are yet to be implemented, including:
- further debt and equity restrictions targeted at Russian entities that are directly or indirectly supporting the war;
- restrictions on Russia obtaining financing from leading multilateral financial institutions, including the International Monetary Fund, the World Bank or the European Bank for Reconstruction and Development;
- a crackdown on evasion and closure of loopholes in existing sanctions, including evasions through the use of digital/cryptoassets; and
- efforts to combat the Russian government’s attempts to spread disinformation.
On 17 March 2022, the Russian Elites, Proxies and Oligarchs Task Force (REPO Task Force), a global task force focused on coordinated enforcement of sanctions and export control measures, held its first meeting. In a joint statement published on the same date, the REPO Task Force confirmed its commitment to prioritising its resources and working together to take all available legal steps to find, restrain, freeze, seize, and, where appropriate, confiscate or forfeit the assets of sanctioned individuals. The signatories to this statement included officials from the US, the UK, Australia, Canada, Japan, France, Germany, Italy and the EU.
In recent days, relevant authorities in the UK and EU issued important guidance on topics such as the aggregation of ownership interests (as discussed below), and we expect that authorities will continue to issue further guidance and FAQ on sanctions topics.
Unless otherwise noted, this client alert describes developments through 20 March 2022. The landscape is rapidly changing, and we will provide more information on new developments — including announcements of further sanctions expected by the US, UK and EU on March 24, 2022 — in upcoming client alerts.
Unless otherwise noted, this client alert describes developments through 20 March 2022. The landscape is rapidly changing, and we will provide more information on new developments in upcoming client alerts.
I. UK Sanctions and Export Controls
The UK has continued to adopt further legislation to implement its sanctions and export control measures.
The Economic Crime (Transparency and Enforcement) Act 2022
The Economic Crime (Transparency and Enforcement) Act 2022 (Economic Crime Act) received royal assent on 15 March 2022, following an expedited passage through Parliament. It introduced a number of provisions relating to economic crime and money laundering, as well as provisions relevant to sanctions.
The most significant provisions involving sanctions include:
- Urgent designation procedure: This allows a person to be designated for sanctions despite the absence of reasonable grounds to suspect that they have been involved in sanctionable conduct. It applies where (i) the person is subject to similar sanctions by the US, EU, Australia, Canada or any other specified country and (ii) it is in the public interest to make such a designation. Urgent procedure designations end after 56 days, unless by then the person is certified as an involved person. The urgent procedure came into force on 15 March 2022 and has already been utilised by the UK to impose further blocking sanctions.
- Strict liability regime: This will remove the requirement that a person must have “known, suspected or believed” that they were breaching sanctions prohibitions in order to be subject to a determination that a breach has occurred. This is not yet in force.
- Reporting on sanctions breaches: The Treasury may publish reports where no monetary penalty has been imposed, so long as it is satisfied (on a balance of probabilities) that a person has breached a prohibition. This is not yet in force.
On 10 March 2022, the UK imposed blocking sanctions on seven business owners,1 and on 11 March 2022, it imposed them on 386 members of the State Duma of the Russian Federation who voted in favor of laws recognising the Donetsk and Luhansk regions as independent states.
Further blocking sanctions were announced on 15 March 2022 on 364 persons, including members of the Federation Council of the Russian Federation, senior political figures,2 several more business owners3 and seven businesses.4 A number of these sanctions were imposed pursuant to the new urgent designation procedure.
On 8 March 2022, the UK passed legislation that strengthened the existing restrictions on Russian aircraft.5 This legislation establishes powers to remove aircraft owned, operated or chartered by designated persons from the UK register. In addition, the legislation makes it a criminal offence for any Russian aircraft6 to fly over or land in the UK.
The legislation also extends the UK’s existing restrictions in relation to Russian ships and, granting powers to detain Russian-registered ships in UK ports.
Russian Oil Restrictions
On 8 March 2022, the UK announced its intention to gradually phase out the import of Russian oil over the current year. No sanctions legislation relating to this has been published. The government also announced the establishment of a Taskforce on Oil to assist companies in finding alternative supplies.
Additional Import Tariffs
A list of Russian and Belarusian products will face an additional 35% increase in import tariffs, the government announced on 15 March 2022. Those include: wood, paper, iron, steel, copper, machinery, cement, iron ores, fertilisers, cereals, beverages, spirits (including vodka) and vinegar. We expect the legislation relating to this to be passed this week.
Further Export Control Measures
Additional measures restricting exports to Russia and Belarus were announced on 15 March 2022. In particular, the UK will ban luxury goods exports to Russia, which is expected to affect luxury vehicles, high-end fashion and works of art. This is not in force yet. The UK also announced its intention to deny Russia and Belarus access to Most Favoured Nation tariff treatment in relation to a number of key exports. The government also said it will no longer issue any new guarantees, loans and insurance for exports to Russia and Belarus.
Suspension of Tax Co-Operation
On 17 March 2022, the UK announced that it was suspending the exchange and sharing of tax information with Russia and Belarus under the UK’s exchange of information agreements. This tax information is exchanged as part of a global collaboration to address tax compliance risks.
The UK’s sanctions regulator, the Office of Financial Sanctions Implementation (OFSI), has issued limited exemptions to certain sanctions restrictions.
The following new general licences have been issued:
- General Licence INT/2022/1327076: This allows Chelsea FC to make certain payments for the purposes of its continued operation (including the payment of employee wages) from 10 March 2022 until 31 May 2022, following the blocking sanctions imposed on its owner, Roman Abramovich.
- General Licence INT/2022/1381276: This allows persons to provide financial services for the purposes of winding down any derivatives, and repurchase and reverse-repurchase transactions entered into prior to 1 March 2022 with (i) the Russian Central Bank, (ii) the Russian National Wealth Fund, and (iii) the Russian Ministry of Finance. It is in force from 22 March 2022 until 2 May 2022.
In addition, OFSI has published amendments to two existing general licences:
- General Licence INT/2022/1272278: This licence, covering persons winding down transactions to which they are a party related to VTB Bank or its UK subsidiaries, extended from 25 February 2022 to 27 March 2022. It was amended on 7 March 2022 to expand the definition of subsidiaries to cover any entity owned or controlled by VTB Bank. In addition, OFSI (i) confirmed that the existing rules do not require that funds payable to VTB in the course of winding down transactions be paid into a frozen account and (ii) suggested that, if funds become payable to a subsidiary of VTB as part of winding down transactions with those subsidiaries, consideration should be given to how the ownership and control provisions in The Russia (Sanctions) (EU Exit) Regulations 2019 could apply to such payments.
- General Licence INT/2022/1277778: This licence, from 1 March 2022 until 31 March 2022, allows UK credit or financial institutions to (i) continue a correspondent banking relationship with Sberbank and (ii) process sterling payment to, from or via Sberbank or a non-UK or UK credit or financial institution owned or controlled directly or indirectly by Sberbank. On 11 March 2022, OFSI amended the licence to make it clear that the authorizations granted in relation to both activities extended to conduct with a non-UK or UK credit or financial institution owned or controlled directly or indirectly by Sberbank.
The Department for International Trade’s Export Control Joint Unit has also issued a General Trade Licence in relation to the restrictions on providing technical assistance, financial services and funds, and brokering services relating to certain restricted goods and technology:
- General Trade Licence (Russia Sanctions, Vessels): This allows the provision of technical assistance, financial services and funds, and brokering services relating to vessels, their component parts and related technology where (i) the vessel is moving from a third country to Russia, or to the UK or a third country from Russia, or transiting Russian territorial waters, (ii) the vessel is moving under its own power, and (iii) the movement of the vessel is not for the purpose of transfer of ownership of the vessel or any of its component parts, or a change of the operator of the vessel, from 17 March 2022.
As noted in our 9 March 2022 client alert, on 8 March 2022, the UK passed legislation that prohibits those who are subject to UK jurisdiction from providing insurance or reinsurance services relating to aviation or space goods and technology (i) to persons connected with Russia or (ii) for use in Russia.
The Export Control Joint Unit issued a general trade licence specifically in relation to these new prohibitions:
- General Trade Licence (Russia Sanctions, Aviation Insurance): From 8 March 2022 until 28 March 2022, this allows the provision of:
- (i) insurance services relating to aviation or space goods and technology if, prior to 8 March 2022, the insurance provider
- (a) did not reinsure any of their obligations; or
- (b) reinsured their obligations and that reinsurance cover has not been rendered unenforceable, suspended, frustrated or prohibited by any applicable sanctions; and
- (ii) reinsurance services relating to aviation or space goods and technology if the insurance obligations they are reinsuring have not been rendered unenforceable, suspended, frustrated or prohibited by any applicable sanctions.7
- (i) insurance services relating to aviation or space goods and technology if, prior to 8 March 2022, the insurance provider
OFSI published updated guidance on 4 March 2022 on the UK’s Russian sanctions framework summarising the financial sanctions that have been imposed against Russian entities and individuals, including, inter alia, asset freezes and restrictions on dealing in transferable securities or granting new loans and credit arrangements, as well as available exceptions.
On 10 March 2022, OFSI published a blog post providing further guidance in relation to the new sanctions that made it clear that OFSI considers crypto assets to be an economic resource, and encompassed by UK financial sanctions regulations.
An 11 March 2022 joint statement from OFSI, the Financial Conduct Authority and the Bank of England reiterated that financial services firms operating in the crypto asset sector must ensure they are in compliance with the UK’s sanctions. The statement: (i) outlines a number of sanctions-specific compliance measures that the government encourages crypto asset firms to consider and (ii) identifies red-flag indicators that may suggest an increased risk of sanctions evasion.
Although OFSI has not yet updated its FAQs regarding Russian sanctions, it hosted a public webinar on 17 March 2022 in order to address certain questions on the new regime.
On 22 March 2022, OFSI published updated guidance on the UK’s financial sanctions framework. In particular, the updated guidance confirms that when making an assessment on ownership and control, OFSI will not aggregate different designated persons’ holdings in a company unless the shares or rights are subject to a joint arrangement between the designated parties, or one party controls the rights of another.
II. EU Sanctions and Export Controls
On 11 March 2022, shortly after the EU’s third set of measures against Russia and its collaborators was finalised, the European Commission announced that it would extend the scope of restrictive measures on Russia and Belarus with a fourth sanctions package.
This was implemented on 15 March 2022, and includes a comprehensive prohibition of any transactions with certain Russian state-owned companies, an export ban of European luxury goods to Russia, an import ban on Russian iron and steel, and a far-reaching ban on new investments in the Russian energy sector.8 However, unlike the US, the EU did not impose an import ban on Russian oil and gas.
In addition, on 11 March 2022, the EU issued further amendments to other recent sanctions, including major additions to the EU Consolidated Sanctions List and comprehensive sectoral sanctions toward Belarus because of its support for Russia in the war in Ukraine.9
Expanded Export/Import Controls and Sectoral Sanctions
The EU expanded the scope of its Russia-related export and import restrictions by amending sectoral sanctions under Council Regulation No. 833/2014 (Amended Regulation 833).10
As of 16 March 2022, it is prohibited to import iron and steel products listed in Annex XVII to Amended Regulation 833, directly or indirectly, that originated in or were exported from Russia11 or to provide related technical or financial services. Related contracts that were concluded before 16 March 2022 may be executed until 17 June 2022. This also applies to any ancillary contracts that are necessary for the execution of such contracts.
It is also now prohibited to export to Russia luxury goods listed in Annex XVIII to Amended Regulation 833 that originated in the EU if their value exceeds €300 per item (or other values specified in the annex).12 Listed goods include caviar, truffles, alcoholic beverages, cigars, perfumes, leather goods, clothes, carpets, jewelry, watches, porcelain, works of art, electronic items for domestic use of a value exceeding €750 and vehicles of a value exceeding €50,000.
As of 10 March 2022 it is also prohibited to export to Russia any maritime navigation goods or technology listed in Annex XVI to Amended Regulation 833, regardless whether or not these goods originated in the EU, or to provide related technical or financial assistance.13
With this fourth set of measures against Russia, the EU also comprehensively amended the list of entities to which it is prohibited to sell or export dual-use goods (as listed in Annex I of Regulation (EU) 2021/821) or goods that might contribute to Russia’s military and technological enhancement or the development of its defense and security sectors (as listed in Annex VII to Amended Regulation 833). Such entities are listed in Annex IV to Amended Regulation 833.14
With respect to the energy sector, the new sectoral sanctions include:
- investment restrictions.15 For example, article 3a of Amended Regulation 833 prohibits (i) the acquisition of any new participation, or the extension of any existing participation, in any Russian entity operating in the energy sector in Russia or (ii) granting any new loan or credit to those entities. By derogation, the competent national authorities may grant exceptions (i) when necessary for ensuring critical energy supply within the EU or (ii) when the activity exclusively concerns a legal person operating in the energy sector in Russia owned by a legal person that is incorporated or constituted under the law of an EU member state; and
- export restrictions relating to goods or technology, whether or not originating in EU, and technical or financial assistance, to any Russian entity acting in the energy industry or for use in Russia (see article 3 and Annex II of Amended Regulation 833).16 However, the prohibition does not apply to the sale or export of goods and technology or related technical and financial assistance necessary for the transport of fossil fuels from or through Russia into the EU. By derogation, the competent national authorities may authorize the export or sale of targeted goods or technology and related technical/financial assistance necessary for ensuring critical energy supply within the EU.
The blanket prohibition to perform any transactions with certain state-owned enterprises (see below) includes major Russian entities acting in the energy sector.17
As laid out in our 9 March 2022 client alert, the Amended Regulation 833 expanded the sanctions targeting Russia’s financial, energy and defense sectors that have been in place since 2014, which prohibit, among other things, dealing in new transferable securities (including equity and debt instruments). Amended Regulation 833 expanded the definition of transferable securities to include securities that are negotiable on the capital markets in the form of crypto assets.
Sanctions Prohibiting Credit Ratings
The Amended Regulation 833 also prohibits as of 15 April 2022 the provision of credit rating services and subscription services relating to credit ratings to any Russian national, any person residing in Russia or any legal person established in Russia.18 This prohibition does not apply to nationals of an EU member state or natural persons having a temporary or permanent residence permit in an EU member state.
Sanctions on State-Owned Entities
In addition to the sectoral sanctions already imposed on Russian state-owned entities (i.e., debt and equity restrictions), new measures prohibit engaging in any transaction with publicly-owned or controlled Russian entities listed in Annex XIX of Amended Regulation 833. In general, it is prohibited to engage directly or indirectly in any transaction with those entities under any contract concluded on or after 16 March 2022.19 However, the execution of contracts concluded before 16 March 2022, or ancillary contracts necessary for the execution of such contracts, is not prohibited until 15 May 2022.
The same prohibition applies to transactions with any legal person established outside the EU that is more than 50% owned by a listed state-owned entity, directly or indirectly. It also applies to transactions with a legal entity acting on behalf or at the direction of a listed state-owned entity or a non-EU entity more than 50% owned by a listed stated-owned entity.
However, there are exceptions with respect to transactions that are strictly necessary for the purchase, import or transport of fossil fuels or transactions related to energy projects outside of Russia in which a listed state-owned entity is a minority shareholder.
Amendments to Sanctions Targeting Deposits in Europe by Russian Nationals
The EU extended the exemption for deposits over €100,000 at EU credit institutions on behalf of Russian nationals and residents to exclude nationals and temporary or permanent residents of an EU member state, countries within the European Economic Area and Switzerland.20
Sanctions Targeting Belarus
The EU extended to three Belarusian credit institutions the same ban on the use of the SWIFT bank transfer system that applies to some Russian credit institutions.21 As of 20 March 2022, it is prohibited to provide specialized financial messaging services (which are used to exchange financial data) to these Belarusian institutions. This prohibition also applies to any legal person, entity o r body established in Belarus that is owned more than 50% by one of those entities. The measures do not impose an asset freeze but have the effect of removing the institutions from SWIFT, undercutting their ability to actively participate in the international financial system.
The EU also extended to Belarusians the deposit restrictions that apply to Russians. It is prohibited to accept deposits exceeding €100,000 from Belarusian nationals, natural persons residing in Belarus, or legal persons, entities or bodies established in Belarus. The term “deposit” includes any credit balance resulting from funds or transactions. This measure is not limited to specifically listed individuals. In addition, central securities depositories may not provide any services for transferable securities issued after 12 April 2022 to any Belarusian national, resident or legal person, entity or body established in Belarus.
Furthermore, euro-denominated transferable securities issued after 12 April 2022 may not be sold to any Belarusian national, resident or legal person, entity or body established in Belarus. The measures are effective as of 10 March 2022. They do not apply to nationals of an EU member state or to deposits necessary for non-prohibited cross-border trade in goods and services between the EU and Belarus.22
Additionally, it is prohibited to sell, supply, transfer or export euro-denominated banknotes to Belarus or any person in Belarus, including the government and the Central Bank of Belarus or for use in Belarus.
As of 12 April 2022, it is also prohibited to list and provide services on trading venues registered or recognized in the EU for the transferable securities of any legal person established in Belarus with over 50% public ownership.
The EU sanctions prohibit transactions with the Central Bank of Belarus related to the management of reserves or assets, and the prohibition of public financing for trade with and investment in Belarus. Exceptions may be granted upon authorization by the competent national authority in order to secure the financial stability of the EU as a whole or of one of the member states.
The EU amended the EU Consolidated List of Financial Sanctions to add nine entities operating in the aviation, military and dual-use, shipbuilding and machine-building sectors23 and 175 individuals, including 14 businesspeople as well as the 146 members of the Russian Federation Council who ratified the Russian government’s decision to recognize the Donetsk and Luhansk regions in eastern Ukraine as independent nations. New additions also include persons playing a role in Russia’s efforts to spread disinformation among the Russian population. In total, 893 individuals and 65 entities are now subject to restrictive measures by the EU.
The EU Commission is publishing guidelines as to the interpretation of the new Russia/Belarus sanctions on a rolling basis in the form of FAQ.24 These guidelines supplement and refer to prior guidelines on EU sanctions generally and Russia sanctions in particular.25
Under EU law, an entity is also subject to asset-freeze sanctions if it is owned more than 50% by a listed person, or if it is otherwise “controlled” by a listed person. In its most recent guidance, dated March 20, 2022, the EU Commission stated for the first time that aggregated ownership should be taken into account regarding the threshold of 50% for an entity to be considered as being owned by a listed person in the EU. The Commission stated: “If one listed person owns 30% of the company and another listed person owns 25% of the company, the company should be considered as jointly owned and controlled by listed persons. Dealing with the company could then be considered as making funds or economic resources indirectly available to the listed persons.”
By amending the definition of “transferable securities” in Amended Regulation 833 (as described above), the European Council noted that it was commonly understood that the notion of “assets” and “economic resources” subject to freezing also includes crypto assets, and that loans and credits can also be provided via crypto assets.26
On 17 March 2022, the European Commission announced an enhanced partnership between the EU’s “Freeze and Seize” task force and the REPO Task Force established by other G-7 nations, including the US and the UK, in order to guarantee the global efficiency of asset freeze sanctions.27
1 Roman Abramovich, Igor Sechin, Oleg Deripaska, Dmitri Lebedev, Alexei Miller, Andrei Kostin and Nikolai Tokarev.
2 Including Dmitry Peskov (press secretary to President Vladimir Putin), Sergei Shoigu (defence minister of the Russian Federation) and Mikhail Mishustin (prime minister of the Russian Federation).
3 Including Mikhail Fridman, German Khan, Petr Aven and Viktor Vekselberg.
4 Gas Industry Insurance Company SOGAZ, Geopolitica, Internet Research Agency, New Eastern Outlook, Oriental Review, Rosneft Aero and JSC Zelenodolsk Shipyard.
5 The Russia (Sanctions) (EU Exit) (Amendment) (No. 6) Regulations 2022.
6 These restrictions apply to all aircraft (i) registered in Russia or (ii) owned, chartered or operated by (a) a person connected with Russia or (b) a designated person.
7 The authorizations granted by the licence apply to contracts concluded before 8 March 2022 in pursuance of, or in connection with, an arrangement for financial services relating to the provision of restricted (i.e. critical-industry, dual-use, military aviation and space) goods (i) to a person connected with Russia or (ii) for use in Russia.
8 Two decisions by the Council of the European Union (Council) and three Council regulations: Council Decision 2022/429 amending Decision 2014/145/CFSP; Council Decision 2022/430 amending Decision 2014/512/CFSP; Council Implementation Regulation (EU) 2022/427 implementing Regulation 269/2014; Council Regulation (EU) 2022/428 amending Regulation 269/2014; Council Decision 2022/430 amending Regulation (EU) 833/2014.
9 Two Council decisions and two Council regulations: Council Decision 2022/395 amending Decision 2014/512/CFSP; Decision 2022/399 amending Decision 2012/642/CFSP; Council Regulation (EU) 2022/394 amending Regulation (EU) 833/2014; Council Regulation (EU) 2022/398 amending Regulation (EC) No 765/2006.
10 Council Regulation (EU) No 833/2014 of July 31, 2014, concerning restrictive measures in response to Russia’s actions destabilizing the situation in Ukraine, as amended: See Official Journal of the European Union 229, Vol. 57 p.1.
11 This also applies to Belarus (Council Regulation (EU) 2022/355 of 2 March 2022 amending Regulation (EC) No 765/2006).
12 See Art. 3h and Annex XVIII Regulation 833, as amended by Regulation (EU) 2022/428.
13 See Art. 3f Regulation 833, as amended by Regulation (EU) 2022/394. In addition, on 9 March 2022, the Russian Maritime Register of Shipping was added to the list of state-owned enterprises subject to the prohibitions on dealing in transferable securities and granting new loans/credits.
15 Regulation 833, as amended by Regulation (EU) 2022/428, excludes the civil nuclear industry from the restrictions.
16 The prohibitions do not apply to the execution until 17 September 2022 of an obligation arising from a contract concluded before 16 March 2022, or 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.
17 See article 5aa and Annex XIX of Regulation 833, as amended by Regulation (EU) 2022/428.
18 See Art. 5j Regulation 833, as amended by Regulation (EU) 2022/428.
19 Opk Oboronprom, United Aircraft Corporation, Uralvagonzavod, Rosneft, Transneft, Gazprom Neft, Almaz-Antey, Kamaz, Rostec (Russian Technologies State Corporation), Jsc Po Sevmash, Sovcomflot and United Shipbuilding Corporation.
20 See Art. 5b No. 2 Regulation 833, as amended by Regulation (EU) 2022/394.
21 Belagroprombank, Bank Dabrabyt and Development Bank of the Republic of Belarus.
22 See Article 1u No. 2, Article 1x No. 2 Regulation (EC) No 765/2006, as amended by Regulation (EU) 2022/398.
23 Rosneft Aero, JSC Rosoboronexport, JSC NPO High Precision Systems, JSC Kurganmashzavod, JSC Russian Helicopters, PJSC United Aircraft Corporation, JSC United Shipbuilding Corporation, JSC Research and Production Corporation Uralvagonzavod and JSC Zelenodolsk Shipyard.
24 See on the EU Commission website, “Sanctions Adopted Following Russia’s Mil itary Aggression Against Ukraine, Frequently Asked Questions.”
25 See, e.g., EU Commission’s “Frequently Asked Questions: Restrictive Measures (Sanctions)” (published 26 February 2022) and the Commission Guidance Note on the Implementation of Certain Provisions of Regulation (EU) No 833/2014 (last updated 25 August 2017).
26 See recital 4 Regulation (EU) 2022/394 amending Regulation 833.
27 See European Commission Press Statement, “Enforcing Sanctions Against Listed Russian and Belarussian Oligarchs: Commission’s ‘Freeze and Seize’ Task Force Steps Up Work With International Partners” (March 17, 2022).