Council Decision (CFSP) 2023/1601 of 3 August 2023 amending Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine
Date: 2023-08-03
Institutions: Council of the European Union
Subjects: Belarus, EU restrictive measure, Russia, Ukraine, dual-use good, economic sanctions, international sanctions, territorial dispute, territorial law, trade restriction




L_2023196EN.01003701.xml










4.8.2023   


EN


Official Journal of the European Union


L 196/37








            COUNCIL DECISION (CFSP) 2023/1601
of 3 August 2023
         
amending Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine


THE COUNCIL OF THE EUROPEAN UNION,

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


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

Whereas:







(1)


On 15 October 2012, the Council adopted Decision 2012/642/CFSP (1).












(2)


On 24 February 2022, the President of the Russian Federation announced a military operation in Ukraine and Russian armed forces began an attack on Ukraine, including from the territory of Belarus. That attack is a blatant violation of the territorial integrity, sovereignty and independence of Ukraine.












(3)


On 2 March 2022, the Council adopted Decision (CFSP) 2022/356 (2), which amended the title of Decision 2012/642/CFSP and introduced further restrictive measures in response to the involvement of Belarus in the Russian aggression against Ukraine.












(4)


In its conclusions of 20 and 21 October 2022, the European Council called on the Belarusian authorities to stop enabling the Russian war of aggression by permitting Russian armed forces to use Belarusian territory and by providing support to the Russian military. The European Council affirmed that the Belarusian regime must fully abide by its obligations under international law and that the Union remains ready to move quickly with further sanctions against Belarus.












(5)


On 18 January 2023, the Union released a statement on the human rights situation in Belarus at the Committee of Ministers of the Council of Europe, in which it expressed grave concern with the dire and deteriorating human rights situation in Belarus under the Lukashenka regime, and further condemned the activities of the regime in Minsk aimed at supporting the barbaric Russian aggression against Ukraine and the renewed attempts to cynically and violently use migrants to create crisis situations at Union borders.












(6)


In its conclusions of 23 March 2023 and 29 and 30 June 2023, the European Council condemned the continued military support for Russia’s war of aggression provided by Belarus and stressed that Belarus must stop allowing Russian armed forces to use its territory, including for the deployment of tactical nuclear weapons.












(7)


In view of the gravity of the situation, and in response to Belarus’s continued involvement in Russia’s aggression against Ukraine, it is appropriate to introduce additional restrictive measures.












(8)


In particular, it is appropriate to prohibit the sale, supply, transfer or export of firearms, their parts and essential components and ammunition. Goods subject to that prohibition are also covered by Regulation (EU) No 258/2012 of the European Parliament and of the Council (3). In that context, Decision 2012/642/CFSP is to be treated as lex specialis and therefore, in the event of a conflict, takes precedence over Regulation (EU) No 258/2012.












(9)


It is also appropriate to further extend the export ban on dual use and advanced goods and technologies, and introduce further export restrictions on goods which could contribute to Belarus’s military and technological enhancement or to the development of its defence and security sector, in particular items which have been used by Russia for its war of aggression against Ukraine.












(10)


It is also appropriate to impose an export ban on goods and technology suited for use in aviation and the space industry, including aircraft engines and their parts, for both manned and unmanned aircraft.












(11)


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












(12)


Decision 2012/642/CFSP should therefore be amended accordingly,





HAS ADOPTED THIS DECISION:



Article 1
Decision 2012/642/CFSP is amended as follows:






(1)


the following Article is inserted:

‘Article 1a

1.   Without prejudice to Article 1 of this Decision, it shall be prohibited to sell, supply, transfer or export, directly or indirectly, firearms, their parts and essential components and ammunition as listed in Annex I to Regulation (EU) No 258/2012 of the European Parliament and of the Council (*1), and firearms and other arms as listed in Annex VI to this Decision, whether or not originating in the Union, to any natural or legal person, entity or body in Belarus or for use in Belarus.


2.   It shall be prohibited to:






(a)


provide technical assistance, brokering services or other services related to the goods referred to in paragraph 1 and to the provision, manufacture, maintenance and use of those goods, directly or indirectly to any natural or legal person, entity or body in Belarus or for use in Belarus; or










(b)


provide financing or financial assistance related to the goods referred to in paragraph 1 for any sale, supply, transfer or export of those goods, or for the provision of related technical assistance, brokering services or other services, directly or indirectly to any natural or legal person, entity or body in Belarus, or for use in Belarus.







(*1)  Regulation (EU) No 258/2012 of the European Parliament and of the Council of 14 March 2012 implementing Article 10 of the United Nations’ Protocol against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition, supplementing the United Nations Convention against Transnational Organised Crime (UN Firearms Protocol), and establishing export authorisation, and import and transit measures for firearms, their parts and components and ammunition (OJ L 94, 30.3.2012, p. 1).’;"
                        










(2)


in Article 2c, paragraph 1 is replaced by the following:

‘1.   The direct or indirect sale, supply, transfer or export of all dual-use goods and technology listed in Annex I to Regulation (EU) 2021/821 of the European Parliament and of the Council (*2) to any natural or legal person, entity or body in Belarus or for use in Belarus by nationals of Member States or from the territories of Member States or using their flag vessels or aircraft shall be prohibited, whether such goods and technology originate or not in their territories.


(*2)  Regulation (EU) 2021/821 of the European Parliament and of the Council of 20 May 2021 setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items (OJ L 206, 11.6.2021, p. 1).’;"
                        










(3)


in Article 2c(3), point (c) is replaced by the following:






‘(c)


temporary export of items for use by news media;’;














(4)


in Article 2c(3), point (e) is replaced by the following:






‘(e)


use as consumer communication devices; or;’;














(5)


in Article 2c(3), point (f) is deleted;










(6)


in Article 2c(3), point (g) is replaced by the following:






‘(f)


personal use of natural persons travelling to Belarus or members of their immediate families travelling with them, and limited to personal effects, household effects, vehicles or tools of trade owned by those individuals and not intended for sale.’;














(7)


in Article 2c(3), the second subparagraph is replaced by the following:

                              ‘With the exception of point (f) of the first subparagraph, the exporter shall declare in the customs declaration that the items are being exported under the relevant exception set out in this paragraph and shall notify the competent authority of the Member State where the exporter is resident or established of the first use of the relevant exception within 30 days from the date when the first export took place.’;










(8)


in Article 2c(4), point (e) is replaced by the following:






‘(e)


civilian non-publicly available electronic communications networks which are not the property of an entity that is publicly controlled or with over 50 % public ownership;’;














(9)


in Article 2c(4), point (g) is replaced by the following:






‘(g)


the diplomatic representations of the Union, Member States and partner countries, including delegations, embassies and missions; or’;














(10)


in Article 2c(4), the following point is added:






‘(h)


ensuring cyber-security and information security for natural and legal persons, entities and bodies in Belarus except for its government and undertakings directly or indirectly controlled by that government.’;














(11)


in Article 2c, paragraph 5 is replaced by the following:

‘5.   By way of derogation from paragraphs 1 and 2 of this Article, and without prejudice to the authorisation requirements pursuant to Regulation (EU) 2021/821, the competent authorities may authorise the sale, supply, transfer or export of dual-use goods and technology or the provision of related technical or financial assistance, for non-military use and for a non-military end-user, after having determined that such goods or technology or such related technical or financial assistance are due under contracts concluded before 3 March 2022, or ancillary contracts necessary for the execution of such a contract, provided that the authorisation is requested before 1 May 2022.’
;









(12)


in Article 2c, paragraph 6 is replaced by the following:

‘6.   All authorisations required under this Article shall be granted by the competent authorities in accordance with the rules and procedures laid down in Regulation (EU) 2021/821, which shall apply mutatis mutandis. The authorisation shall be valid throughout the Union.’
;









(13)


in Article 2c(7), points (i) and (ii) are replaced by the following:






‘(i)


the end-user might be a military end-user, a natural or legal person, entity or body listed in Annex II or that the goods might have a military end-use, unless the sale, supply, transfer or export of goods and technology referred to in paragraph 1 of this Article or the provision of related technical or financial assistance is allowed under Article 2da(1), point (a); or










(ii)


the sale, supply, transfer or export of goods and technology referred to in paragraph 1 or the provision of related technical or financial assistance is intended for aviation or the space industry, unless such sale, supply, transfer or export or the provision of related technical or financial assistance is allowed under paragraph 4, point (b).’;














(14)


in Article 2d(3), point (c) is replaced by the following:






‘(c)


temporary export of items for use by news media;’;














(15)


in Article 2d(3), point (f) is deleted;










(16)


in Article 2d(3), point (g) is replaced by the following:






‘(f)


personal use of natural persons travelling to Belarus or members of their immediate families travelling with them, and limited to personal effects, household effects, vehicles or tools of trade owned by those individuals and not intended for sale.’;














(17)


in Article 2d(3), the second subparagraph is replaced by the following:

                              ‘With the exception of point (f) of the first subparagraph, the exporter shall declare in the customs declaration that the items are being exported under the relevant exception set out in this paragraph and shall notify the competent authority of the Member State where the exporter is resident or established of the first use of the relevant exception within 30 days from the date when the first export took place.’;










(18)


in Article 2d(4), point (e) is replaced by the following:






‘(e)


civilian non-publicly available electronic communications networks which are not the property of an entity that is publicly controlled or with over 50 % public ownership;’;














(19)


in Article 2d(4), point (g) is replaced by the following:






‘(g)


the diplomatic representations of the Union, Member States and partner countries, including delegations, embassies and missions; or’;














(20)


in Article 2d(4), the following point is added:






‘(h)


ensuring cyber-security and information security for natural and legal persons, entities and bodies in Belarus except for its government and undertakings directly or indirectly controlled by that government.’;














(21)


in Article 2d, the following paragraph is inserted:

‘4a.   Without prejudice to paragraph 4, point (e), and by way of derogation from paragraphs 1 and 2, the competent authority may authorise the sale, supply, transfer or export of the goods and technology referred to in paragraph 1 or the provision of related technical or financial assistance, for non-military use and for a non-military end-user, after having determined that such goods or technology or the related technical or financial assistance are intended for the wind-down by 6 February 2024 of contracts and operations which are ongoing on 5 August 2023 and which are necessary for the provision of civil telecommunication services to the Belarusian civilian population.’
;









(22)


in Article 2d, the following paragraph is inserted:

‘5a.   By way of derogation from paragraphs 1 and 2, the competent authorities of the Member State may authorise the sale, supply, transfer or export of goods falling under CN codes 8536 69, 8536 90, 8541 30 and 8541 60 until 6 February 2024, or the provision of related technical or financial assistance, insofar as this is necessary for the processing of those goods in Belarus by a joint venture in which a company established in the Union has a majority ownership on 5 August 2023, for the purpose of subsequent import into the Union and subsequent production in the Union of goods destined for use in the health or pharmaceutical sector, or in the area of research and development.’
;









(23)


in Article 2d, paragraph 6 is replaced by the following:

‘6.   All authorisations required under this Article shall be granted by the competent authorities in accordance with the rules and procedures laid down in Regulation (EU) 2021/821, which shall apply mutatis mutandis. The authorisation shall be valid throughout the Union.’
;









(24)


in Article 2d(7), points (i) and (ii) are replaced by the following:






‘(i)


the end-user might be a military end-user, a natural or legal person, entity or body listed in Annex II or that the goods might have a military end-use, unless the sale, supply, transfer or export of goods and technology referred to in paragraph 1 of this Article or the provision of related technical or financial assistance is allowed under Article 2da(1), point (a); or










(ii)


the sale, supply, transfer or export of goods and technology referred to in paragraph 1 or the provision of related technical or financial assistance is intended for aviation or the space industry, unless such sale, supply, transfer or export or the provision of related technical or financial assistance is allowed under paragraph 4, point (b).’;














(25)


the following Article is inserted:

‘Article 2sa

1.   It shall be prohibited to sell, supply, transfer or export, directly or indirectly, goods and technology suited for use in aviation or the space industry, whether or not originating in the Union, to any natural or legal person, entity or body in Belarus or for use in Belarus.


2.   It shall be prohibited to provide insurance and reinsurance, directly or indirectly, in relation to goods and technology referred to in paragraph 1 to any person, entity or body in Belarus or for use in Belarus.


3.   It shall be prohibited to provide any one or any combination of the following activities: overhaul, repair, inspection, replacement, modification or defect rectification of an aircraft or component, with the exception of pre-flight inspection, in relation to the goods and technology referred to in paragraph 1, directly or indirectly, to any natural or legal person, entity or body in Belarus or for use in Belarus.


4.   It shall be prohibited to:






(a)


provide technical assistance, brokering services or other services related to the goods and technology referred to in paragraph 1 and to the provision, manufacture, maintenance and use of those goods and technology, directly or indirectly to any natural or legal person, entity or body in Belarus or for use in Belarus; or










(b)


provide financing or financial assistance related to the goods and technology referred to in paragraph 1 for any sale, supply, transfer or export of those goods and technology, or for the provision of related technical assistance, brokering services or other services, directly or indirectly to any natural or legal person, entity or body in Belarus or for use in Belarus.






5.   The prohibitions in paragraphs 1 and 4 shall not apply to the execution until 4 September 2023 of contracts concluded before 5 August 2023, or of ancillary contracts necessary for the execution of such contracts.


6.   By way of derogation from paragraphs 1 and 4, the national competent authorities may authorise, under such conditions as they deem appropriate, the execution of an aircraft financial lease concluded before 5 August 2023 after having determined that:






(a)


it is strictly necessary to ensure lease re-payments to a legal person, entity or body incorporated or constituted under the law of a Member State which does not fall under any of the restrictive measures provided for in this Decision; and










(b)


no economic resources will be made available to the Belarusian counterpart, with the exception of the transfer of ownership of the aircraft after full reimbursement of the financial lease.






7.   By way of derogation from paragraphs 1 and 4, the competent authorities may authorise, under such conditions as they deem appropriate, the sale, supply, transfer or export of the goods falling under CN codes 8517 71 00, 8517 79 00 and 9026 00 00, or related technical assistance, brokering services, financing or financial assistance, after having determined that it is necessary for medical or pharmaceutical purposes, or for humanitarian purposes, such as delivering or facilitating the delivery of assistance, including medical supplies, food, or the transfer of humanitarian workers and related assistance or for evacuations.
When deciding on requests for authorisations for medical, pharmaceutical or humanitarian purposes in accordance with this paragraph, the national competent authorities shall not grant an authorisation for exports to any natural or legal person, entity or body in Belarus or for use in Belarus, if they have reasonable grounds to believe that the goods might have a military end-use.


8.   The Member State concerned shall inform the other Member States and the Commission of any authorisations granted under this Article within two weeks of the authorisation.


9.   The prohibition in paragraph 1 shall be without prejudice to Articles 2c(4), point (b), and 2d(4), point (b).


10.   The prohibition in paragraph 4, point (a), shall not apply to the exchange of information aimed at establishing technical standards in the framework of the International Civil Aviation Organization in relation to goods and technology referred to in paragraph 1.


11.   The Union shall take the necessary measures in order to determine the relevant items to be covered by this Article.’

;









(26)


the text set out in the Annex to this Decision is added as Annex VI to Decision 2012/642/CFSP.






Article 2
This Decision shall enter into force on the day following that of its publication in the Official Journal of the European Union.




Done at Brussels, 3 August 2023.


For the Council


The President

P. NAVARRO RÍOS
            





(1)  Council Decision 2012/642/CFSP of 15 October 2012 concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine (OJ L 285, 17.10.2012, p. 1).

(2)  Council Decision (CFSP) 2022/356 of 2 March 2022 amending Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus (OJ L 67, 2.3.2022, p. 103).

(3)  Regulation (EU) No 258/2012 of the European Parliament and of the Council of 14 March 2012 implementing Article 10 of the United Nations’ Protocol against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition, supplementing the United Nations Convention against Transnational Organised Crime (UN Firearms Protocol), and establishing export authorisation, and import and transit measures for firearms, their parts and components and ammunition (OJ L 94, 30.3.2012, p. 1).




ANNEX



‘ANNEX VI
List of firearms and other arms referred to in Article 1a






CN Code


Description




9303 


Other firearms and similar devices which operate by the firing of an explosive charge




ex 9304 


Other arms (for example, spring, air or gas guns and pistols), excluding those of heading 9307 






            ’