Proposal for a COUNCIL DECISION on the position to be taken on behalf of the Union in the Council of Europe bodies on the change of status of the European Union from Associate Member to Participant in the Enlarged Partial Agreement on the Register of Damage caused by the Aggression of the Russian Federation against Ukraine
Date: 2024-05-30
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: European convention, Russia, Russo-Ukrainian issue, Ukraine, accession to an agreement, damage, damages, military intervention

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   EUROPEAN COMMISSION  Brussels, 30.5.2024  COM(2024) 224 final 2024/0125 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the Union in the Council of Europe bodies on the change of status of the European Union from Associate Member to Participant in the Enlarged Partial Agreement on the Register of Damage caused by the Aggression of the Russian Federation against Ukraine  
 
EXPLANATORY MEMORANDUM 

This proposal concerns the change of status of the European Union from Associate Member 
to  Participant  in  the  Enlarged  Partial  Agreement  on  the  Register  of  Damage  caused  by  the 
Aggression of the Russian Federation against Ukraine (“Register of Damage” or “Register”). 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

On  12  May  2023,  the  Committee  of  Ministers  of  the  Council  of  Europe  adopted  the 
Resolution establishing the Enlarged Partial Agreement on the Register of Damage Caused by 
the Aggression of the Russian Federation against Ukraine1. 

The  Register  of  Damage  serves  as  a  record,  in  documentary  form,  of  evidence  and  claims 
information  on  damage,  loss  or  injury  caused  to  all  natural  and  legal  persons  concerned,  as 
well as the State of Ukraine, caused from 24 February 2022 in the territory of Ukraine by the 
Russian Federation’s internationally wrongful acts in or against Ukraine.  
Due to the time constraints ahead of the Council of Europe’s 4th summit held on 16-17 May 
2023 in Reykjavik, in which the establishment of the Register of Damage was announced, the 
only way for the Union to become a founding member of the Register of Damage was to join 
the  Enlarged  Partial  Agreement  as  Associate  Member,  in  accordance  with  Article  4, 
paragraph 2, of the Statute of the said Enlarged Partial Agreement. 

To this end, on 11 May 2023, following a policymaking decision by the Council supporting 
such a move2, the Commission adopted a Decision pursuant to Article 220 of the Treaty on 
the Functioning of the European Union (TFEU) to authorise the President of the Commission 
to notify the Secretary General of the Council of Europe of the Union’s intention to join the 
Enlarged Partial Agreement on the Register of Damage, in a first step as founding Associate 
Member3.  The  participation  of  the  Union  as  Associate  Member  in  the  Enlarged  Partial 
Agreement did  not,  nor  was it intended to,  create any legal  obligations for the Union under 
international law.  

As of today,  in  addition to  the  Union, 43 States have joined the Register of Damage, 40  as 
Participants4 – including 26 Member States5 – and three as Associate Members6.  

In accordance with Article 5(7) of the Statute of the Register of Damage, Associate Members 
that  make  voluntary  contributions  to  the  Register  of  an  amount  equal  to  the  amount  they 
would have to pay if they were Participants have the full range of rights of Participants during 
the  financial  year  for  which  they  made  such  a  contribution.  The  Union  already  paid  a 

1 
Resolution  CM/Res(2023)3  establishing  the  Enlarged  Partial  Agreement  on  the  Register  of  Damage 
Caused by the Aggression of the Russian Federation against Ukraine (Adopted by the Committee of Ministers on 
12 May 2023 at the 1466th meeting of the Ministers’ Deputies). 

2 
3 

4 

5 

6 

I/A Item Note 9016/23, 5 May 2023. 
C(2023) 3241, 11.5.2023. 

Albania,  Andorra, Austria, Belgium,  Bulgaria,  Croatia, Cyprus, Czechia,  Denmark,  Estonia,  Finland, 
France,  Georgia,  Germany,  Greece,  Iceland,  Ireland,  Italy,  Latvia,  Liechtenstein,  Lithuania, 
Luxembourg,  Malta,  Republic  of  Moldova,  Monaco,  Montenegro,  Netherlands,  North  Macedonia, 
Norway,  Poland,  Portugal,  Romania,  San  Marino,  Slovak  Republic,  Slovenia,  Spain,  Sweden, 
Switzerland, Ukraine and the United Kingdom. 

Hungary has not joined the Register of Damage. 

Canada, Japan and the United States. 

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voluntary  contribution  of  EUR  1  million  for  2023  and  has  pledged  to  pay  the  annual 
recommended contribution for 2024. Therefore, it currently enjoys the full range of rights that 
Participants have. 

Considering the interest of the Union in ensuring that the Russian Federation bears the legal 
consequences  of  its  internationally  wrongful  acts,  and  given  that  the  establishment  of  the 
Register of Damage constitutes a significant first step to ensure timely compensation for the 
victims, it is now appropriate to change the Union’s status in the Enlarged Partial Agreement 
from  Associate  Member  to  Participant,  thereby  reiterating  the  Union’s  firm  commitment  to 
the  activities  of  the  Register,  including  via  the  payment  of  the  annual  compulsory 
contribution.  

The change of status would not only be politically significant for the Register of Damage but 
also  of  practical  benefit  as  it  would  bring  financial  stability  to  the  Register,  based  on  the 
guarantee of a compulsory financial contribution from the Union. 

• 

Consistency with existing policy provisions in the policy area 

The  change  of  the  Union’s  status  in  the  Enlarged  Partial  Agreement  on  the  Register  of 
Damage is consistent with the Union’s commitment to ensuring that damages  caused by the 
Russian Federation’s aggression against Ukraine and other violations of international law are 
duly  compensated,  as  already  demonstrated  by  the  Union’s  early  participation  in  the  same 
Enlarged Partial Agreement as a founding Associate Member. The Commission Decision  of 
11  May  2023,  by  which  the  Commission  President  was  authorised  to  notify  the  Secretary 
General  of  the  Council  of  Europe  of  the  Union’s  intention  to  join  the  Enlarged  Partial 
Agreement on the Register of Damage as Associate Member, already acknowledged that such 
status  was  meant  to  be  only  a  first  step  in  the  Union’s  participation  in  the  Enlarged  Partial 
Agreement.  

Furthermore, becoming Participant in the Register of Damage complements several initiatives 
undertaken at the European level since the end of February 2022 and aimed at ensuring that 
the Russian Federation is held accountable for its war of aggression against Ukraine and that 
individuals responsible for international crimes committed in and against Ukraine are brought 
to justice. This is the case, in particular, for the setting up of the International Centre for the 
Prosecution  of  the  Crime  of  Aggression  against  Ukraine  (ICPA)  at  Eurojust.  The  present 
proposal is likewise consistent with the Union’s participation in different fora and structures 
aimed  at  enhancing  the  cooperation  among  national  competent  authorities  investigating  the 
international  crimes  committed  in  and  against  Ukraine  and  ensuring  that  there  will  be  no 
impunity  for  such  crimes,  such  as  the  Dialogue  Group  and  the  Atrocity  Crimes  Advisory 
Group. 

• 

Consistency with other Union policies 

The  Union’s  unwavering  support  for  Ukraine  reflects  a  shared  commitment  to  democratic 
principles and to the safeguarding of the rules-based international order and peace in Europe. 
The present  proposal  is  therefore  consistent  with  other Union policies  that aim to  safeguard 
the  international  order  and  peace  in  Europe,  notably  in  the  context  of  the  current  war  of 
aggression  against  Ukraine.  In  particular,  the  Union  has  adopted  unprecedented  restrictive 
measures against the Russian Federation to increase the costs on the Russian Federation for its 
illegal actions and to thwart its ability to continue its aggression. To enhance the enforcement 
of these restrictive measures, the Union has, among others, set up the Freeze and Seize Task 
Force,  adopted  a  Directive  that  harmonises  the  definition  of,  and  criminal  penalties  for  the 

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violation of Union restrictive measures.7 The Commission appointed an EU Sanctions Envoy 
to  ensure  continuous,  high-level  discussions  with  third  countries  to  avoid  the  evasion  or 
circumvention  of  the  Union  restrictive  measures,  and  has  published  guidance  to  national 
authorities and private operators in dealing with the interpretation of the relevant Union rules 
on the matter. 

Furthermore, the Union’s participation in the Enlarged Partial Agreement on the Register of 
Damage is consistent with the long-standing cooperation between the Union and the Council 
of Europe in in the fields of human rights and fundamental freedoms, democracy and the rule 
of law. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

Article 218(9) TFEU provides for decisions establishing ‘the positions to be adopted on the 
Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts 
having  legal  effects,  with  the  exception  of  acts  supplementing  or  amending  the  institutional 
framework of the agreement.’ 

It is to be noted that Regulation (EU) 2024/792 of the European Parliament and of the Council 
of 29 February 2024 establishing the Ukraine Facility8 already provides for the legal basis for 
the Union’s contribution to the Register of damage. 

The substantive legal basis depends primarily on the objective and content of the envisaged 
act. If the envisaged act pursues two aims or has two components and if one of those aims or 
components is identifiable as the main one, whereas the other is merely incidental, a legal act 
must  be  founded  on  a  single  substantive  legal  basis,  namely  that  required  by  the  main  or 
predominant  aim  or  component.  The  present  proposal  has  one  main  aim,  namely  the 
cooperation  of  the  Union  with  the  Register  of  Damage,  established  within  the  institutional 
framework  of  the  Council  of  Europe.  The  Register  of  Damage  plays  a  critical  role  in 
supporting and enforcing international justice in Ukraine as it constitutes the first step towards 
an  international  compensation  mechanism  for  victims  of  the  aggression  of  the  Russian 
Federation  against  Ukraine.  Such  initiative  is  carried  out  within  the  framework  of  the 
principles and objectives of the Union’s external action, notably in relation to its commitment 
to  ensuring  that  the  Russian  Federation  is  held  fully  accountable  for  its  war  of  aggression 
against Ukraine. Thus, the substantive legal basis for this proposal is Article 212 TFEU. 

Therefore,  this  proposal  is  based  on  Article  212  TFEU  in  conjunction  with  Article  218(9) 
TFEU.  

• 

Subsidiarity (for non-exclusive competence)  

In accordance with Article 3(2) TFEU, the cooperation between the Union and the Register of 
Damage  and  the  ensuing  Union’s  membership  in  the  Enlarged  Partial  Agreement  on  the 
Register of Damage falls within the exclusive external competence of the Union. Therefore, 
this proposal is not subject to a subsidiarity check. 

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8 

Directive  (EU)  2024/…  of  the  European  Parliament  and  of  the  Council  of  …  on  the  definition  of 
criminal offences and penalties for the violation of Union restrictive measures and amending Directive 
(EU) 2018/1673 (not yet published). 

Regulation  (EU)  2024/792  of  the  European  Parliament  and  of  the  Council  of  29  February  2024 
establishing the Ukraine Facility, OJ L, 2024/792, 29.2.2024. 

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• 

Proportionality 

The Union’s objectives with regard to this proposal as set out above can only be achieved by 
the  Union  entering  as  Participant  into  a  binding  international  agreement  providing  for  a 
commitment to the long-term payment of the annual compulsory contribution. 

• 

Choice of the instrument 

Participation in the Enlarged Partial Agreement on the Register of Damage, given its overall 
structure and prescriptive language, has legal effects and hence the Union’s position needs to 
be established by a Council decision under Article 218(9) TFEU. The concept of ‘acts having 
legal  effects’ includes acts  that have legal effects by virtue of the rules of international law 
governing the body in question. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

Not applicable.  

• 

Stakeholder consultations 

Not applicable. 

• 

Collection and use of expertise 

Not applicable. 

• 

Impact assessment 

Not applicable. 

• 

Regulatory fitness and simplification 

Not applicable. 

• 

Fundamental rights 

The aggression of the Russian Federation against Ukraine is a violation of international law 
and  has  already  caused  massive  damages  in  Ukraine  and  to  the  Ukrainian  population.  The 
present  proposal  aims  at  strengthening  the  Union’s  commitment  to  ensuring  that,  via  the 
Register of Damage, such damages can be duly compensated, including those resulting from 
the violation by the Russian Federation of fundamental rights such as the rights to life, to the 
integrity of the person and to property, as well as of the prohibition of torture and inhuman or 
degrading treatment or punishment.  

4. 

BUDGETARY IMPLICATIONS 

The status  of the Union as Participant in  the  Enlarged  Partial  Agreement on the Register of 
Damage requires its financial commitment to pay the annual compulsory contribution. 

Pursuant  to  Article  10(3)  of  the  Statute  of  the  Register  of  Damage,  both  the  amount  of  the 
annual  compulsory  contributions  of  Participants  and  that  of  the  recommended  voluntary 
contributions  of  Associate  Members  are  based  on  the  criteria  for  the  determination  of  the 
annual scale of contributions to the general budget of the Council of Europe. 

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The  Register  is  established  for  an  initial  period  of  three  years,  in  accordance  with  the 
Resolution  establishing  the  Enlarged  Partial  Agreement  on  the  Register  of  Damage.  The 
review of the functioning of the Register, with a view to considering the continuation of its 
operation, is envisaged by the end of the initial period of three years, i.e. by May 2026.  

Regulation  (EU)  2024/792  of  the  European  Parliament  and  of  the  Council  of  29  February 
2024  establishing  the  Ukraine  Facility9  provides  for  the  legal  basis  for  the  Union’s 
contribution to the Register of Damage. On the basis of the objectives set out in Regulation 
(EU)  2024/792,  and  in  particular  assistance  under  Chapter  V,  Article  34(3)  of  Regulation 
(EU) 2024/792 provides that ‘[a]ssistance under this Chapter shall also strengthen capacities 
for  conflict  prevention,  peacebuilding  and  address  pre-  and  post-crisis  needs,  including 
through,  confidence-building  measures  and  processes  that  promote  justice,  truth-seeking, 
comprehensive  post-conflict  rehabilitation  for  an  inclusive,  peaceful  society,  as  well  as 
collection of evidence of crimes committed during the war. Funding for initiatives and bodies 
involved in supporting and enforcing international justice in Ukraine may be provided under 
this Chapter’. Therefore, as the Enlarged Partial Agreement on the Register of Damage aims 
to  enforce  international  justice  in  Ukraine  by  contributing  to  a  mechanism  that  will 
compensate  the  damages  suffered  by  Ukraine  and  its  population  and  caused  by  the  Russian 
Federation’s  violations  of  international  law,  Article  34(3)  of  Regulation  (EU)  2024/792 
provides for the appropriate legal  basis in  accordance with  which  the Union  can provide its 
financial contribution to the Enlarged Partial Agreement on the Register of Damage.  

The  budget  line  that  would  cater  for  this  expenditure  would  be  line  16  06  03  01  —  Union 
accession  assistance  and  other  measures,  whereby  in  the  relative  budget  remarks  it  is 
explained  that  this  item  ‘will  also  cover  support  for  […]  other  measures  that  are 
complementary  to  EU  action,  such  as  accountability  mechanisms  for  Russia’s  war  of 
aggression’.  

With  regard  to  the  method  of  implementation,  Article  239  of  Regulation  (EU,  Euratom) 
2018/1046 of the European Parliament and of the Council on the financial rules applicable to 
the general budget of the Union10, which enables the Union to pay membership fees to bodies 
of which the Union is a member, is applicable for the Union’s compulsory contribution to the 
Register  and  has  already  been  applied  for  the  payment  of  the  2023  Union’s  voluntary 
contribution to the Register.  

On 16 November 2023, the Conference of Participants of the Register of Damage adopted the 
annual budget for 2024.  The Union’s contribution for 2024 was set at EUR 845 863,71 and 
the corresponding call for contribution  was issued to  the  Union. The contribution  should  be 
paid before 1 July 2024 in accordance with the above-mentioned modalities. 

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10 

Regulation  (EU)  2024/792  of  the  European  Parliament  and  of  the  Council  of  29  February  2024 
establishing the Ukraine Facility, OJ L, 2024/792, 29.2.2024. 

Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on 
the  financial  rules  applicable  to  the  general  budget  of  the  Union,  amending  Regulations  (EU)  No 
1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) 
No  1316/2013,  (EU)  No  223/2014,  (EU)  No  283/2014,  and  Decision  No  541/2014/EU  and  repealing 
Regulation (EU, Euratom) No 966/2012, OJ L 193, 30.7.2018. 

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5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

Not applicable. 

• 

Explanatory documents (for directives) 

Not applicable. 

• 

Detailed explanation of the specific provisions of the proposal 

Article  1  includes  the  position  to  be  taken,  on  behalf  of  the  Union,  on  the  change  of  the 
Union’s  status  from  Associate  Member  to  Participant  in  the  Enlarged  Partial  Agreement  on 
the Register of Damage. 

Article 2 provides for the entry into force of the Decision.  

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2024/0125 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the Union in the Council of Europe bodies on the 
change of status of the European Union from Associate Member to Participant in the 
Enlarged Partial Agreement on the Register of Damage caused by the Aggression of the 
Russian Federation against Ukraine 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 212 in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

On  14  November  2022,  the  United  Nations  General  Assembly  adopted  a  Resolution 
recognising  the  need  for  the  establishment  of  an  international  mechanism  for 
reparation for damage, loss or injury arising from the internationally wrongful acts of 
the  Russian  Federation  against  Ukraine.  The  Resolution  further  recommends  the 
creation by Member States, in cooperation with Ukraine, of an international register of 
damage to serve as a record of relevant evidence and claims information thereon. 

On 12 May 2023, the Committee of Ministers of the Council of Europe  adopted the 
Resolution  establishing  the  Enlarged  Partial  Agreement  on  the  Register  of  Damage 
Caused by the Aggression of the Russian Federation against Ukraine. 

The Register of Damage should serve as a record, in documentary form, of evidence 
and  claims  information  on  damage,  loss  or  injury  caused  to  all  natural  and  legal 
persons concerned, as well as the State of Ukraine, caused from 24 February 2022 in 
the  territory  of  Ukraine  by  Russian  Federation’s  internationally  wrongful  acts  in  or 
against Ukraine. 

The  Union  joined  the  Enlarged  Partial  Agreement  on  the  Register  of  Damage  as  a 
founding Associate Member by means of a Commission Decision, adopted on 11 May 
2023,  pursuant  to  Article  220  TFEU,  and  notified  on  the  same  day  to  the  Secretary 
General of the Council of Europe. Before adopting the Decision, the Commission had 
consulted the Council on the Union’s participation as founding Associate Member in 
the Register of Damage, which politically endorsed the decision to participate. 

The Commission Decision of 11 May 2023, by which the Union joined  the Enlarged 
Partial Agreement on the Register of Damage, already acknowledged that the Union’s 
status  as  Associate  Member  was  meant  to  be  only  a  first  step  in  the  Union’s 
participation in said Enlarged Partial Agreement.  

On  29  February  2024,  the  European  Parliament  and  the  Council  adopted  Regulation 
(EU) 2024/792 establishing the Ukraine Facility, by which the co-legislators have inter 
alia  provided  the  legal  basis  for  funding  for  initiatives  and  bodies  involved  in 
supporting and enforcing international justice in Ukraine. 

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(7) 

(8) 

Given the interest of the Union in ensuring that the Russian Federation bears the legal 
consequences  of  its  internationally  wrongful  acts  against  Ukraine,  including  the 
obligation  to  make  reparation  for  any  damage,  loss  and  injury  caused  by  those  acts, 
and in reiterating the firm commitment of the Union to  participate in the Register of 
Damage as well as its interest in enjoying the full rights as Participant, it is appropriate 
to  change  the  Union’s  status  in  the  Enlarged  Partial  Agreement  on  the  Register  of 
Damage from Associate Member to Participant.  

Participants in the Enlarged Partial Agreement on the Register of Damage are required 
to pay an annual compulsory contribution to the Register of Damage. For the Union, 
this payment should be made in accordance with the relevant provisions of Regulation 
(EU)  2024/792  of  the  European  Parliament  and  of  the  Council  of  29  February  2024 
establishing the Ukraine Facility, 

HAS ADOPTED THIS DECISION:  

Article 1 

The position to be taken on behalf of the Union shall be to notify the change of the Union’s 
status  in  the  "Enlarged  Partial  Agreement  on  the  Register  of  Damage  caused  by  the 
Aggression  of  the  Russian  Federation  Against  Ukraine”  from  Associate  Member  to 
Participant.  

This Decision shall enter into force on the date of its adoption. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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