[EU sanctions - what if...?]

Talks between the European Commission and EU capitals on the next, 𝟏𝟔𝐭𝐡 𝐩𝐚𝐜𝐤𝐚𝐠𝐞 𝐨𝐟 𝐬𝐚𝐧𝐜𝐭𝐢𝐨𝐧𝐬 will begin next week. The intention is that they will be adopted around the 3rd anniversary of Russia's aggression against Ukraine, on 24 February 2025. 

But it looks like there is one much closer date this time, relevant to EU sanctions. And no, I am not referring to 20 January, the inauguration of the new US president. Not yet.

𝐓𝐡𝐚𝐭 𝐝𝐚𝐭𝐞 𝐢𝐬 𝟑𝟏 𝐉𝐚𝐧𝐮𝐚𝐫𝐲. That is when EU sanctions will technically expire. To be precise, Council Decision 2014/512/CFSP will expire. EU sanctions against Russia are renewed every six months. The time limit is set for member states to review the sanctions and assess whether their purpose has been achieved or not (incidentally, most EU sanctions regimes are renewed for 12 months, not 6 months). 

There were no issues with the prolongations so far but the following factors should be noted this time:

🔻 Victor Orban (Hungary) has already said that he will not agree to an extension of the agreement before Trump's inauguration. The Slovak Prime Minister is in talks with the Ukrainians about gas transit. Austria is in the process of forming a new, most likely less pro-Ukrainian government. Uncertainty is certain. What if these countries do not agree to extend sanctions.

🔻 Unanimity is needed not only for the imposition of new sanctions through the adoption of a Council decision but also for the extension of existing Council decisions. 

🔻 Council Regulation 833/2014, which introduces sanctions against Russia (or, more precisely, which introduces restrictions and obligations that EU citizens, EU companies, non-EU companies operating in the EU must respect when dealing with Russia) is based on Council Decision 2014/512/CFSP.

🔻 The schedule will be tight. Trump's inauguration will take place on 20 January. The EU Foreign Affairs Council meets on 27 January. Council Decision 2014/512/CFSP expires on 31 January. 

Let me stress that I do not believe that Council Decision 2014/512/CFSP will not ultimately be extended. EU sanctions will not disappear from February. But let's play this "what if...?" game. And let's cool some hot heads. 

What happens to the Council Regulation once the Council Decision has expired?

There are two types of legislation related to sanctions. Council Decisions and Council Regulations. When a Council Decision expires, Council Regulations based on such a decision must be repealed in accordance with Article 215 TFEU. This should be done at the same time or immediately after the expiry of the decision.

• However, when a decision expires for lack of action (e.g. no extension), the regulation requires action to be repealed. 

• A qualified majority vote (55% of Member States representing at least 65% of the total EU population in favour) is required to repeal the Regulation. If Hungary does not vote to extend the Decision, say Latvia, Poland and others will not vote to repeal the Regulation 833/2012. Some would call this a deadlock; others would call it a safeguard. 

• Moreover, the EU is clear that restrictive measures should be lifted according to their objectives and not according to time limits (Sanctions Guidelines - para 35). 

• An expiry date in the Council Decision does not mean that there is also an expiry date in the Council Regulation, and there is no expiry date in Council Regulation 833/2014.

If to extended, the Council Decision will disappear from the legal order, but the Council Regulation, which is the direct source of the restrictions and obligations that the general public must comply with, will remain in force. Although this will not be a pleasant situation from a legal point of view, all existing sanctions will remain binding for the EU companies, even if Council Decision 2014/512/CFSP expires.

OK, so if this topic is resolved, we can all get back to thinking about the upcoming 16th package of sanctions against Russia.