This note provides an overview of the financial sanctions introduced by the United States government, the UK government and the European Union in response to the invasion of Ukraine by Russia as of 3 March 2022. Given that this is an evolving situation, the sanctions landscape remains fluid and will continue to change considerably over the course of the coming days and weeks.
In addition to the sanctions imposed by the US, the UK and the EU a number of other countries have also announced similar measures designed to encourage Russia to cease its actions in Ukraine, including: Canada, Switzerland, France, Japan, Australia, New Zealand and Taiwan.
This note is set out as follows:
1. US regime
2. UK regime
3. EU regime
4. Practical tips
1. UNITED STATES
A. OVERVIEW OF U.S. ECONOMIC AND FINANCIAL SANCTIONS REGIMES
The President of the United States has broad powers—under long-standing statutory authorities, including the International Emergency Economic Powers Act (“IEEPA”), the National Emergencies Act, and the Trading with the Enemy Act, and newer authorities, such as the Protecting Europe’s Energy Security Act and Countering America’s Adversaries Through Sanctions Act—to respond to national emergencies and advance U.S. national security and foreign policy objectives through the imposition and enforcement of economic and financial sanctions. Pursuant to these authorities, the President may issue Executive Orders to establish individual sanctions regimes in response to declared national emergencies. These regimes are primarily administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), though sanctions and related regimes also are administered by other U.S. government agencies, including, e.g., the U.S. Department of Commerce’s Bureau of Industry and Security, which is primarily responsible for administering U.S. export controls.
B. OVERVIEW OF U.S. SANCTIONS IN RESPONSE TO INVASION OF UKRAINE
1. Territorial Sanctions
On February 21, 2022, President Biden issued Executive Order (“E.O.”) 14065 in response to Russian efforts to undermine the sovereignty and territorial integrity of Ukraine. Among other things, E.O. 14065 imposes broad territorial sanctions targeting separatist regions in Ukraine, specifically the Donetsk People’s Republic (“DNR”) and Luhansk People’s Republic (“LNR”, and collectively with the DNR, the “Covered Regions”). These territorial sanctions are similar to sanctions imposed by the U.S. government with respect to the Crimea region of Ukraine in 2014. Specifically, E.O. 14065 prohibits:
- New investment in the Covered Regions by a U.S. person,1 wherever located;
- The importation in the United States, directly or indirectly, of any goods, services, or technology from the Covered Regions;
- The exportation, reexportation, sale, or supply, directly or indirectly, from the United States, or by a U.S. person, wherever located, of any goods, services, or technology to the Covered Regions; and
- Any approval, financing, facilitation, or guarantee by a United States person, wherever located, of a transaction by a foreign person where the transaction would be prohibited if performed by a U.S. person or within the United States.
In relation to these new territorial sanctions, OFAC issued Ukraine General License 17, which authorizes, until March 23, 2022,2 transactions that are ordinarily incident and necessary to the wind down of transactions involving the DNR and LNR.3
2. Full Blocking Sanctions Targeting Designated Entities, Individuals, and Vessels
In response to the Russian invasion of Ukraine, OFAC has added more than 500 entities, individuals, and vessels to the Specially Designated Nationals and Blocked Persons List (the “SDN List,” and its targets, “SDNs”) pursuant to multiple pre-existing Executive Orders. Notable targets include:
- High-profile Russian government officials, including Vladimir Putin, the Russian Minister of Foreign Affairs, and other Russian government officials, as well as several members of the Russian elite, Vladimir Putin’s inner circle, and their families;
- A number of major Russian financial institutions, including, e.g., Novicombank, Otkritie, Promsvyazbank (PSB), Sovcombank, Vnesheconombank (“VEB”), and VTB Bank;4
- Nord Stream 2 AG and its Chief Executive Officer; and
- Certain Belarusian elites, financial institutions, and defense companies.
U.S. sanctions block the property and interests in property of SDNs in the United States and in the hands of U.S. persons abroad. Under OFAC’s 50% Rule, entities that are 50% or more owned by one or more other SDNs are also targeted as SDNs, regardless of whether the downstream entities are separately identified by OFAC on the SDN List.
U.S. sanctions generally prohibit U.S. persons from engaging in any transactions with SDNs, except as authorized by OFAC pursuant to a general or specific license. Most of the Russian entities and individuals that have been added to the SDN List in response to Russia’s invasion of Ukraine were designated pursuant to E.O.14024, which President Biden issued on April 15, 2021, in response to harmful foreign activities of the Russian government, including the violation of well-established principles of international law, including respect for the territorial integrity of states. E.O. 14024 prohibits, among other things:
- The making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to E.O. 14024; and
- The receipt of any contribution or provision of funds, goods, or services from any such person.
3. Prohibitions Relating to Russian Sovereign Debt
Pursuant to E.O. 14024, as described above, OFAC issued a series of new directives in response to Russia’s invasion of Ukraine. Directive 1, which already was in force, prohibited U.S. financial institutions from participating in the primary market for bonds issued after June 14, 2021, by, or lending to, the following entities:
- The Central Bank of the Russian Federation;
- The National Wealth Fund of the Russian Federation, or
- The Ministry of Finance of the Russian Federation.
On February 22, 2022, OFAC supplemented these restrictions by issuing Directive 1A, which prohibits U.S. financial institutions from participating in the secondary market for bonds issued by these entities after March 1, 2022.
Subsequently, on February 28, 2022, OFAC issued Directive 4 under E.O. 14024, which, except as otherwise licensed or authorized by OFAC, prohibits U.S. persons from engaging in any transactions involving the entities above, including any transfer of assets to such entities or any foreign exchange transaction for or on behalf of such entities.
4. Prohibitions Relating to Correspondent and Payable-Through Accounts
On February 24, 2022, OFAC issued Directive 2 under E.O. 14024, which prohibits U.S. financial institutions, except as licensed or authorized by OFAC, from opening or maintaining a correspondent or payable-through account for or on behalf of Sberbank or any of its subsidiaries, or entities subsequently designated under Directive 2, or processing any transactions involving these foreign financial institutions. These restrictions require U.S. financial institution to reject transactions involving Sberbank and its subsidiaries but, unlike sanctions targeting SDNs, do not require the blocking of their property and interests in property. These sanctions take effect at 12:01 a.m. eastern daylight time on March 26, 2022, or 30 days after the designation of any new entities under Directive 2.
5. Prohibitions Relating to New Debt and Equity of Other Russia-Related Entities
On February 24, 2022, OFAC also issued Directive 3 under E.O. 14024, which prohibits, except as licensed or otherwise authorized by OFAC, the following activities by U.S. persons or within the United States, with respect to entities targeted under Directive 3 and their subsidiaries:
- All transactions in, provisions of financing for, or other dealings in new equity of such entities, or new debt of longer than 14 days maturity.
These prohibitions will take effect 30 days after any new designations under Directive 3, and they will take effect on 12:01 a.m. eastern daylight time on March 26, 2022, with respect to the following entities identified in Annex 1 to the Directive, and their subsidiaries:
- Credit Bank of Moscow Public Joint Stock Company;
- Gazprombank Joint Stock Company;
- Joint Stock Company Alfa-Bank;
- Joint Stock Company Russian Agricultural Bank;
- Joint Stock Company Sovcomflot;
- Open Joint Stock Company Russian Railways;
- Public Joint Stock Company Alrosa;
- Public Joint Stock Company Gazprom;
- Public Joint Stock Company Gazprom Neft;
- Public Joint Stock Company Rostelecom;
- Public Joint Stock Company Rushydro;
- Public Joint Stock Company Sberbank of Russia; and
- Public Joint Stock Company Transneft.
6. Additional Export Controls
In addition to the economic and financial sanctions imposed by OFAC, the Commerce Department’s Bureau of Industry and Security (“BIS”) has imposed more restrictive export controls in response to Russia’s invasion of Ukraine. These controls include:
- License requirements (subject to a presumption of denial with respect to license applications) for the export, re-export, or transfer (in Russia) of any items subject to the Export Administration Regulations (“EAR”) and listed on the Commerce Control List (“CCL”) under Category 3 (Electronics), Category 4 (Computers), Category 5 (Telecommunications and Information Security), Category 6 (Sensors and Lasers), Category 7 (Navigation and Avionics), Category 8 (Marine), or Category 9 (Aerospace and Propulsion).
- Two new foreign direct product rules that extend the range of foreign-produced items that are subject to the EAR. The first rule results in a license requirement for the export, re-export, or transfer (in-country) of foreign-produced items that are the direct product of software or technology in product groups D or E of categories 3-9 of the CCL, or items produced by a complete plant or major component of a plant that is the direct product of such U.S.-origin software or technology, when the foreign-produced item is on the CCL and it is known that the item is destined for Russia or will be incorporated into or used in the production or development of parts, components, or equipment produced in or destined for Russia. The second rule, which targets Russian military end users, applies to foreign-produced items (even EAR99 items) that are the direct product of software or technology in product groups D or E of any category of the CCL (not just categories 3-9), or items produced by a complete plant or major component of a plant that is the direct product of such software or technology, if there is knowledge that the foreign-produced item will be used in the production or development of any part, component, or equipment produced, purchased or ordered by an entity with a footnote 3 designation on the Entity List, or if any entity with such a designation is party to a transaction involving the foreign-produced item.
- Restrictions on the availability of license exceptions for use with respect to exports, reexports, or transfers to or in Russia.
- Expansion of Russian military end user and end use controls to include all items subject to the EAR, other than food and medicine designated EAR99, or ECCN 5A992.c and 5D992.c unless for Russian government end users and state-owned enterprises.
- Comprehensive export, reexport, and transfer (in-country) restrictions for the DNR and LNR.
C. PENALTIES FOR U.S. SANCTIONS AND EXPORT CONTROL VIOLATIONS
Penalties for U.S. sanctions violations vary depending on the statute authorizing the relevant sanctions regime. Willful violations of IEEPA, which provides the statutory authorization for Executive Orders used to target Russia in response to its invasion of Ukraine, can result in criminal penalties of up to $1,000,000 per violation and/or, for natural persons, imprisonment of up to 20 years. Similarly, export control violations can result in criminal penalties of up to $1,000,000 and/or imprisonment of up to 20 years.
Sanctions violations are commonly resolved, on a strict liability basis, through administrative enforcement actions by OFAC, pursuant to which OFAC may impose civil monetary penalties. BIS often resolves export control violations through civil penalties as well, which may include fines, revocation of export licenses, and denial of export privileges.
OFAC and BIS both have issued civil enforcement guidelines that draw two threshold distinctions among matters that come before them, namely (i) whether the conduct was voluntarily self-disclosed, and (ii) whether the conduct at issue was “egregious.” OFAC and BIS both strongly encourage voluntary self-disclosure, which results in a 50% reduction in the amount of any civil monetary penalty imposed by OFAC or BIS. Whether conduct is egregious or non-egregious depends on a number of factors, including, for example:
- Whether the conduct was willful or reckless;
- Whether company management were involved in or aware of the conduct;
- The amount of harm to U.S. national security, foreign policy, or other sanctions or export control program objectives;
- The company’s commercial sophistication, the strength of its compliance program, and any history of noncompliance;
- The degree of cooperation with regulators;
- The deterrent effect of an administrative enforcement action; and
- Other factors the regulators deem relevant.
If the conduct is found to be non-egregious, the civil monetary penalty is limited to a schedule amount linked to the value of the transactions in violation of sanctions or export controls (or half that amount, in the case of voluntary self-disclosure). If the conduct is found to be egregious, OFAC may impose a civil monetary penalty of up to the greater of $330,947 per violation or twice the value of the underlying transactions in violation of sanctions, and for export control violations, BIS may impose a civil monetary penalty of up to $328,121 per violation or twice the value of the underlying transactions in violation of export controls.
2. UNITED KINGDOM
OVERVIEW OF SANCTIONS LEGISLATIVE REGIME
The Sanctions and Anti-Money Laundering Act 2018 is the principal component of the UK’s post-Brexit sanctions framework. This framework allows the UK to adopt both: (i) country or territory-specific sanctions; and (ii) sanctions targeting specific issues or products (for example, chemical weapons, cyber-attacks or serious human rights abuses). As a general rule, all UK sanctions apply to: (i) all individuals and legal entities within the UK’s territory; and (ii) all UK nationals and legal entities established under UK law irrespective of where their activities take place.
The Russia (Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/855) (the “2019 Regulations”) were made under the Sanctions and Anti-Money Laundering Act 2018. They provide for various sanctions against certain persons, entities or bodies involved in destabilising Ukraine or undermining or threatening the territorial integrity, sovereignty or independence of Ukraine, or obtaining a benefit from or supporting the Government of Russia. The original purpose of the 2019 Regulations was to ensure the Russia-related sanctions measures adopted by the EU in response to the invasion of Crimea remain in place post-Brexit.
In recent weeks, as summarised below:
- The UK has designated a number of individuals and entities under the 2019 Regulations (as recently amended). As a general matter, these individuals and entities are subject, variously, to: (i) complete asset freezes; or (ii) provisions aimed to restrict their ability to raise finance.
- The UK has adopted three further regulations aimed at expanding the Russia-related sanctions. These are: (i) The Russia (Sanctions) (EU Exit) (Amendment) (No. 2) Regulation 2022 (the “2022 Amendment No. 2)”; (ii) The Russia (Sanctions) (EU Exit) (Amendment) (No. 3) Regulation 2022 (the “2022 Amendment No. 3”); and (iii) The Russia (Sanctions) (EU Exit) (Amendment) (No. 5) Regulation 2022 (the “2022 Amendment No. 5”). As summarised below, each of these Regulations introduces a new form of sanctions restrictions under the broad umbrella of the 2019 Regulations. These restrictions target, variously: (i) the ability of financial institutions to provide correspondent banking (and related services); and (ii) particular goods. The UK is expected to designate a large number of further entities and individuals pursuant to these regulations.
It is worth noting that these sanctions are also extended to the British Overseas Territories, including the Cayman Islands and British Virgin Islands.
- SANCTIONS IN RESPONSE TO RUSSIA’S INVASION OF UKRAINE
The main sanctions imposed in response to the invasion of Ukraine are: (i) asset freezing measures; (ii) financial sanctions; and (iii) trade sanctions. These are summarised in the table below. It should be noted that this list is not exhaustive.
|Scope of sanctions
|Targets of sanctions
|The asset freezing measures in the 2019 Regulations prevent any person from dealing with funds or economic resources owned held or controlled by a “designated person” and any person who is owned or controlled (directly or indirectly) by them. “Dealing with” is very broadly defined. It includes transferring or moving funds as well as exchanging economic resources for funds, goods or services. The measures extend to a prohibition on making funds or economic resources available to a designated person or for the benefit of a designated person
|The asset freezing measures are designed to target “designated persons”, specifically persons who the Secretary of State has reasonable grounds to suspect has been involved in “destabilising Ukraine or undermining or threatening the territorial integrity, sovereignty or independence of Ukraine” or who have obtained a benefit from or supported the Government of Russia, as well as those owned, controlled or acting on behalf of such a person and those associated with such a person. There is no geographical limit to the definition as the sanctions encapsulate entities owned or controlled by other sanctioned entities, including those based in the UK. Since 22 February 2022, in excess of 30 entities and individuals have been subjected to asset freezing measures. Generally, these are individuals connected to President Putin (including President Putin himself), Belarusian military officers, key Russian and Belarusian military entities and key Russian banks. These designations are additional to those already named in relation to Russia’s activities in Ukraine since 2014. At present, the number of entities and individuals on the UK sanctions list is likely to continue to grow rapidly in the coming days and weeks5
|There are certain exceptions to these measures including for the crediting of a frozen account by a relevant institution (any such interest or other earnings will be frozen in accordance with the relevant legislation underpinning the asset freeze). In addition, there is an exception for making funds available to a designated person, when funds are transferred to a frozen account in discharge (or partial discharge) of an obligation which arose before the recipient became a designated person
|Dealing with transferable securities or money-market instruments
|Further financial sanctions imposed under the 2019 Regulations include preventing persons from dealing (directly or indirectly) with a transferable security or money-market instrument. In this case: “Dealing with” includes purchasing or selling, providing investment services relating to, or assisting in the issuance of the security or instrument.“Investment services” includes, amongst others, portfolio management, investment advice or the execution of orders on behalf of clients. Money-market instruments and transferable securities refer to financial instruments such as treasury bills, certificates of deposit, commercial papers, shares in companies and bonds (the “Instruments”).
|These financial sanctions have so far been levied against Instruments issued by the following entities (collectively referred to as the “Sanctioned Entities”): SberbankVTB bankGazprombankVnesheconombank (VEB)RosselkhozbankOPK OboronpromUnited Aircraft CorporationUralvagonzavodRosneftTransneftGazprom Neft This list also includes: Non-UK entities owned by the Sanctioned Entities;UK incorporated or constituted entities that are owned by the Sanctioned Entity; An individual that is an ordinary resident in Russia or located in Russia, or an entity that is incorporated or constituted under the law of Russia or domiciled in Russia (“Russian Connected Person”); andThe Government of Russia or those acting on its behalf. Whilst the 2019 Regulations specified the Sanctioned Entities, the effect of the 2022 Amendment No. 2 is to cast the net of targets beyond any maintainable list. Unlike with the asset freezing measures which apply only to designated persons, the financial sanctions relating to Instruments apply to any entity or individual that falls within the scope of the 2022 Amendment No. 2. This is likely to include most Russian-incorporated entities which deal in the Instruments.
|There is an exception for “relevant countries” where the prohibited conduct is authorised by a licence or other authorisation under the laws of the relevant country and for the purpose of disapplying the prohibition. “Relevant countries” means: (i) any of the Channel Islands; (ii) the Isle of Man; or (iii) any British overseas territory.
|Loans and credit arrangements
|The 2019 Regulations (as amended by the 2022 Amendment No. 2) also impose a restriction on the granting of loans to or entering into credit arrangements with: The Sanctioned Entities or their non-UK subsidiaries (“Category 1 Loans”); Loans to UK subsidiaries of the Sanctioned Entities (“Category 2 Loans”); Loans to Russian Connected Persons or those owned by Russian Connected Persons (“Category 3 Loans”); and Loans to the Government of Russia (“Category 4 Loans”).
|These measures apply to: (i) the Sanctioned Entities and entities owned by the Sanctioned Entities; (ii) Russian Connected Persons and those owned by Russian Connected Persons; (iii) those acting on behalf of or at the direction of the Sanctioned Entities, Russian Connected Persons and entities owned by Sanctioned Entities or Russian Connected Persons; and (iv) the Russian Government.
|The prohibition does not apply to relevant loans of a drawdown or disbursement made under an arrangement entered into before: 15 September 2014 for Category 1 Loans where the terms and conditions were agreed before this date; and 1 March 2022 for Category 2 Loans, Category 3 Loans and Category 4 Loans where the terms and conditions were agreed before this date. The prohibition also does not apply to loans that make emergency funds available for solvency or liquidity criteria for a subsidiary.
|Correspondent banking relationships
|The 2022 Amendment No. 2 creates a new category of financial sanctions targeting correspondent banking relationships. These restrictions apply to UK credit or financial institutions and prevent them from: establishing or continuing to maintain a banking relationship (including providing banking services such as current or other liability account and related services) with a designated person; orprocessing a sterling payment to, from or via a designated person. These measures broadly replicate the US measures already in place and prevent targeted banks from processing payments through the UK or having access to UK financial measures.
|These measures are applicable against: (i) designated persons; and (ii) UK and non-UK credit or financial institutions owned or controlled directly or indirectly by the designated person. As with the asset freezing measures, these sanctions can only be applied against the specific entities designated by the Secretary of State. So far, the only entity subject to this type of financial sanction is PJSC Sberbank.
|These measures do not apply against the processing of a sterling payment for any fee or charge required to permit an aircraft to overfly, land in or take off from Russia.
|Provision of financial services relating to foreign exchange reserve and asset management
|The 2022 Amendment No. 5 introduced further financial sanctions targeting the Russian foreign exchange reserve and asset management. The restrictions prohibit the provision of financial services for the purpose of foreign exchange investment and asset management (including derivative products, transferable securities and money-market instruments.)
|The restrictions target: Central Bank of the Russian Federation;National Wealth Fund of the Russian Federation; andMinistry of Finance of the Russian Federation In addition, persons owned or controlled directly or indirectly by the above entities or acting on behalf of or at the direction of the above entities are subject to these restrictions.
|There is an exception for “relevant countries” where the prohibited conduct is authorised by a licence or other authorisation under the laws of the relevant country and for the purpose of disapplying the prohibition. “Relevant countries” means: (i) any of the Channel Islands; (ii) the Isle of Man; or (iii) any British overseas territory.
|Under the 2019 Regulations, prohibitions are in place in respect of, amongst other things: Export of military goods to Russia;Import of arms and related material from Russia;Supply and delivery of military goods to Russia;Making available or acquiring military goods and technology to Russia; andProviding financial services or funds relating to military goods or technology to a Russian Connected Person The 2022 Amendment No. 3 expands these prohibitions to include dual-use goods/technology and critical-industry goods/technology. Dual-use goods/technology are goods/technology that can be used for both civil and military purposes such as global positioning satellites, missiles, chemical and biological tools and night vision technology. Critical-industry goods/technology are specifically listed in the schedule to the 2022 Amendment No. 3 and include certain electronic devices and components and telecommunication equipment. The 2022 Amendment No. 3 also replaces the previous prohibitions relating to dual-use goods/technology and critical-industry goods/technology for named persons and military use. A transitional provision is accounted for in relation to licences that have been issued to authorise trade within the scope of these replaced provisions.
|The target of these sanctions is Russia itself, as well as Russian Connected Persons. The scope of who can be caught under this sanction is potentially very wide and is not restricted by any designation by the Secretary of State.
|There are a number of limited exceptions provided for in the 2022 Amendment No.3, including personal items and diplomatic missions, consular posts and international organisations and emergencies.
- PENALTIES FOR BREACH OF SANCTIONS
The Policing and Crime Act 2017 gives powers to HM Treasury to impose monetary penalties for breaches of financial sanctions. The Office of Financial Sanctions Implementation (“OFSI”) is the part of the Treasury that applies these powers.
OFSI can respond to a potential breach of sanctions by: (i) issuing a warning; (ii) referring regulated professionals or bodies to their relevant professional body or regulator to improve compliance with sanctions; (iii) imposing a monetary penalty; or (iv) referring the case to law enforcement agencies for criminal investigation and potential prosecution. Under the 2019 Regulations, the maximum criminal penalty for conviction on indictment is imprisonment for a term not exceeding seven years or a fine (or both).
OFSI will impose a monetary penalty in circumstances where it is satisfied the person, on the balance of probabilities:
- has breached a prohibition, or failed to comply with an obligation, that is imposed by or under financial sanctions legislation; and
- the person knew, or had reasonable cause to suspect, that the person was in breach of the prohibition or (as the case may be) had failed to comply with the obligation.
The balance of probabilities test in this case is the civil standard of proof referring to where it is more likely than not that something has happened.
“Reasonable cause to suspect” is an objective test that asks whether there were factual circumstances from which an honest and reasonable person should have inferred knowledge or formed the suspicion that the conduct amounted to a breach of sanctions.
OFSI will take account of the following factors (amongst others) in deciding whether a breach of sanctions has occurred:
- the value of the breach, with a high value breach being more likely to result in enforcement action;
- the harm or risk of harm done to the objective of the sanctions regime (namely to encourage Russia to cease actions destabilising Ukraine or undermining or threatening the territorial integrity, sovereignty or independence of Ukraine);
- The actual and expected knowledge of the sanctions held by the individual or company, with consideration given to the kind of work undertaken and exposure to financial sanctions risk. For regulated professionals this would include meeting regulatory and professional standards;
- The behaviour of the parties in a case, for example whether the breach appears to have been deliberate or a mistake. Without the knowledge or reasonable cause to suspect a breach, the matter likely would not warrant a penalty;
- Voluntary disclosure of the breach to OFSI. This is valued by OFSI and may have an impact on any penalty decision; and
- Public interest and whether it warrants prudent use of public resources as well as the fairness and consistency in applying the law.
It is important to note that OFSI has published a list of licences that are available in relation to the above sanction regimes. These licences allow for certain activities to take place for a limited period of time, such as the unwinding of a transaction with a sanctioned financial institution.
Furthermore, the UK government has put before Parliament the Economic Crime (Transparency and Enforcement) Bill which would have the effect of making a breach of sanctions legislation a strict liability offence. It would mean that for the purpose of determining a breach, the current requirement that a person has to know, suspect or believe they are in breach would be ignored.
3. EUROPEAN UNION
A. OVERVIEW OF EU SANCTIONS REGIME
The EU has over 40 different sanctions regimes in place, some which are mandated by the UN Security Council and others adopted autonomously by the EU. Decisions on the adoption, renewal, or lifting of sanctions regimes are taken by the Council of the European Union, on the basis of proposals from the High Representative of the Union for Foreign Affairs and Security Policy. EU sanctions can target governments of non-EU countries as well as companies, groups, organisations or individuals, and can include: (i) financial restrictions; (ii) asset freezes; (iii) travel bans; and (iv) restrictions on imports and exports.
In 2014, the EU Council issued two basic regulations, one for sectoral measures (Council Regulation No 833/2014) and one for lists of natural or legal persons, entities or bodies (Council Regulation No 269/2014) to impose the first set of sanctions against Russia in relation to the annexation of Crimea. Since then, and in light of the situation in Ukraine, the EU has introduced a number of different measures, across a variety of different sectors, which are considered in more detail below and aim to extend the regulations already in place. The new EU sanctions regulations are directly effective in the Member States and do not need to be transposed into national law. Broadly speaking, these measures apply within the EU, to nationals of a Member State, to entities incorporated under the law of a Member State and in respect of business done in whole or in part within the EU.
Further details – including a timeline and an infographic on the EU sanctions – can also be found on the official EU website.6
B. EU SANCTIONS IN RESPONSE TO RUSSIA’S INVASION OF UKRAINE
1. Asset freezing measures
To date, the EU has imposed restrictive measures on a total of 702 people and 53 entities. According to the EU, the actions of these individuals and entities have undermined Ukraine’s territorial integrity, sovereignty and independence, or these individuals and entities are considered to have supported or benefitted from the Russian government.
The measures take the form of an asset freeze, which includes a prohibition on making funds available to them. Member States may authorise the release of funds in certain situations, such as for the satisfaction of basic needs, the payment of reasonable professional legal fees or for holding or maintenance charges in respect of the frozen funds.
Listed individuals are also subject to a travel ban, which prevents them from entering or transiting in the EU. Again, this is subject to certain exemptions, such as for humanitarian reasons.
The list of sanctioned persons and entities includes the following:
- Government officials, including 351 members of the Russian Duma who voted in favour of Russia’s recognition of the Donetsk and Luhansk oblasts of Ukraine
- A number of high-ranking oligarchs and businessmen active in the oil, banking and finance and media sectors
- High-ranking military officials, both in Russia and Belarus
- Internet Research Agency (allegedly engaged in online influence operations on behalf of Russia)
- Russian banks, including Russ Bank Rossiya, Promsvyazbank and VEB
In addition, on 25 February 2022, the EU adopted Council Regulation 2022/332, which imposes an asset freeze on the Russia President Vladimir Putin and Foreign Minister Sergey Lavrov. For the time being, the EU has not imposed a travel ban on Putin or Lavrov given the potential need for them to travel for the purposes of diplomacy.
2. Financial sanctions
Capital markets – Russian Central Bank
On 23 February 2022, the EU adopted Council Regulation 2022/262, which imposes further restrictive measures prohibiting the financing of Russia, its government and its Central Bank, or anyone acting on their behalf. By restraining the ability of the Russian state and government to access the EU’s capital and financial markets and services, the EU aims to limit the financing of escalatory and aggressive policies.
Regulation 2022/262 prohibits the direct or indirect purchase, sale, provision of investment services or other assistance in relation to or otherwise dealing with transferable securities and money-market instruments of any maturity issued by such entities after 9 March 2022.
In addition, Regulation 2022/262 prohibits the direct or indirect provision of or the entry into any arrangement to make new loans or extend credit to such entities after 23 February 2022.
On 28 February 2022, the EU went further in relation to financial sanctions and adopted Council Regulation 2022/334, which prohibits a wider range of transactions involving the Central Bank of Russia, including those relating to the management of reserves and assets of the Central Bank of Russia.
Capital markets – Additional Institutions
On 25 February 2022, the EU adopted Council Regulation 2022/328, which expands the existing financial restrictions, in particular those on access by certain listed Russian entities to EU capital markets. It also prohibits the listing and provision of services in relation to shares of Russian state-owned entities on EU trading venues. In addition, it introduces new measures which significantly limit the financial inflows from Russia to the EU by prohibiting the acceptance of deposits exceeding certain values from Russian nationals or residents, the holding of accounts of Russian clients by the EU central securities depositories as well as the selling of euro-denominated securities to Russian clients. These are explained in further detail below.
- The expanded list now includes four additional credit institutions (Alfa Bank, Bank Otkritie, Bank Rossiya and Promsvyazbank) who are said to have a significant role in supporting the activities of Russia, its government and the Central Bank. The restrictions will apply from 12 April 2022.
- The expanded list also includes eight new entities (Almaz-Antey, Kamaz, Novorossiysk Commercial Sea Port, Rostec (Russian Technologies State Corporation), Russian Railways, JSC PO Sevmash, Sovcomflot, and United Shipbuilding Corporation). These entities are said to be those in which Russia, its government and the Central Bank have a right to participate in profits or with which they have a substantial economic relationship. The restrictions will apply from 12 April 2022.
- Regulation 2022/328 also prohibits the sale of euro denominated transferable securities issued after 12 April 2022 or units in collective investment undertakings with exposure to such securities to any Russian national, resident or entity.
- Regulation 2022/328 prohibits the listing and provision of services on trading venues registered or recognised in the EU for the transferable securities of any legal person, entity or body established in Russia and with over 50% public ownership.
Accepting deposits in EU Banks
- In addition, Regulation 2022/328 prevents EU credit institutions from accepting deposits of over EUR 100,000 per institution from Russian nationals, residents or legal entities, subject to certain exemptions. Credit institutions must provide reports to regulatory authorities of any such holdings of over EUR 100,000 on a regular basis.
Public financing, assistance and investment in Russia
- Finally, Regulation 2022/328 prohibits the provision of public financing or financial assistance for trade with, or investment in, Russia. Certain exemptions apply, including in relation to the financing of up to EUR 10 million per project to SMEs established in the EU.
On 2 March 2022, the EU adopted Council Regulation 2022/345, which prohibits the provision of specialised financial messaging services, which are used to exchange financial data (SWIFT), to seven Russian banks (Bank Otkritie, Novikombank, Promsvyazbank, Rossiya Bank, Sovcombank, Vnesheconombank (VEB), and VTB Bank). The prohibition will enter into force from 12 March 2022, and will also apply to any legal person, entity or body established in Russia whose proprietary rights are directly or indirectly owned more than 50% by the above-mentioned banks.
In addition, Regulation 2022/345 prohibits the investment, participation or contribution towards future projects co-financed by the Russian Direct Investment Fund.
Finally, Regulation 2022/345 prohibits the sale, supply, transfer or export of euro denominated banknotes to Russia or to any natural or legal person, entity or body in Russia, including the government and the Central Bank of Russia, or for use in Russia. Certain exemptions apply, including for personal or diplomatic use.
3. Trade sanctions
Dual-use goods and technology
On 25 February 2022, the EU adopted Council Regulation 2022/328, which, amongst other things, expanded the restrictions already in place in relation to the export of dual-use goods and technology.
Regulation 2022/328 now prohibits the supply of all dual-use items to any person in Russia, or for use in Russia. Dual-use items include goods, services, software and technology which could have both civil and military use purposes and are listed in Annex I to Council Regulation 2021/821. In addition, the direct/indirect supply/export/sale of certain goods and technology regardless of their dual-use capability is prohibited according to Annex VI to Council Regulation 2022/328. This is a wide list and examples include machine tools, certain chemicals, lasers, electronic components and surveillance equipment. The Regulation also prohibits the provision of technical or financial assistance in relation to such items.
In addition, Regulation 2022/328 prohibits the supply of goods and technology which might contribute to Russia’s military and technological enhancement, or the development of the defence and security sector. Again, it also prohibits the provision of technical or financial assistance in relation to such items.
Numerous exceptions apply to these restrictions, including for humanitarian purposes, intergovernmental co-operation, civilian telecommunication networks and personal use, which will require notification to the relevant competent authority. Members States are able to provide authorisations in certain circumstances, for instance where items or assistance are provided for non-military use and are due under contracts concluded before 26 February 2022. However, the Regulation lists 66 entities where authorisations will only be granted in very limited circumstances due to their links to the military.
On 1 March 2022, the EU adopted Council Regulation 2022/350, which suspends the broadcasting activities in the EU of the Russian state-owned media outlets Sputnik and Russia Today. The EU intends to keep the suspension in place until the aggression against Ukraine is brought to an end and until Russia and its associated outlets “cease to conduct disinformation and information manipulation against the EU and its Member States”.
C. EU ENFORCEMENT OF SANCTIONS
While the EU has developed a common foreign and security policy over the years, which enables the 27 Member States to present a united front on key issues including sanctions, the day-to-day administration and enforcement of sanctions is delegated to the competent authorities of each Member State within the EU. As such, the EU supranational courts play a limited role in the enforcement of restrictive measures.
Member States are responsible for identifying breaches, conducting investigations into potential non-compliance and for applying penalties. As each Member State determines the penalties that it considers sufficiently robust to deter transgressions, the potential offence may be civil or criminal in nature, depending on the state, and the penalties may range from fines to custodial sentences.
The European Council has emphasised the need for consistent interpretation across the bloc in ensuring the effectiveness of restrictive measures, and has noted the importance of information sharing to help achieve this. This is enshrined in EU sanctions regulations: Member States are required to share relevant information in order to achieve some form of consistency of approach as regards the enforcement of sanctions.
The European Commission ensures that Member States implement domestic rules on enforcement and penalties in a timely manner, and enforce these regulations. The Council of the EU also aides information sharing and the development of best practices between Member States. The European Commission issued a strategy paper in January 2021 in which a key area of focus was strengthening the implementation and enforcement of EU sanctions. Furthermore, Ursula von der Leyen, the President of the European Commission, has recently made it clear that she intends the EU sanctions framework to be subject to enhanced scrutiny, particularly with respect to implementation and enforcement at Member State level, which may help achieve a more effective sanctions regime going forward.
4. PRACTICAL TIPS
Set out below are some practical tips to help navigate the evolving US, UK and EU sanctions regime.
- Do not panic. Whilst the level of sanctions being levied at Russia is unprecedented in nature in relation to such a large economic power, and will inevitably cause significant disruption to a large number of businesses around the world, sanctions authorities also understand that the adjustment to these rapidly evolving regimes cannot always be immediate. The key is to act diligently and quickly in proportion to the size and nature of the business.
- Assess risk profile and potential nexus with regards to the sanctions. Determine to what extent: (i) there is a Russian or Ukrainian nexus, including investors, lenders, assets and contractual counterparties; and (ii) the relevant business depends, directly or indirectly, on good or services being delivered to or from Russia or Ukraine.
- Forensically assess the interface between the relevant business and the current regulations including by: (i) screening counterparties against current consolidated sanctions lists; and/or (ii) conducting case-by-case reviews of high risk counterparties/business lines.
- Determine what steps are required to comply with the sanction regimes. This may include terminating business relationships or temporarily suspending them.
- Keep up-to-date on the evolving regimes. As visible from the last week, the regimes are constantly changing with new entities and individuals being added on an almost daily basis.
- Consider the wider implications at play. There is potential for other operational issues to arise out of the current crisis, including broader ESG issues.