(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 was a blatant violation of the territorial integrity, sovereignty and independence of Ukraine.

(3)

In its conclusions of 19 February 2024, the Council strongly condemned the continued support provided by the Belarusian regime to Russia’s war of aggression against Ukraine and called on Belarus to refrain from such action and to abide by its international obligations.

(4)

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.

(5)

In particular, it is appropriate to prohibit the procurement from Belarus of arms and related materiel of all types.

(6)

In order to strengthen the effectiveness of the restrictive measures imposed in response to Russia’s war of aggression against Ukraine, it is necessary to address the risk of circumvention of those measures through indirect exports via third countries. Certain goods and technology might contribute to Belarus’s military and technological enhancement or to the development of its defence and security sector, including when exported under the guise of being intended for civilian end-use. The prohibition on indirect exports covers the export of items that are subject to restrictive measures, including via a third country. Competent authorities should take timely preventive action where there is a credible risk that such items exported to third countries might ultimately be diverted to Belarus. Therefore, it is appropriate to provide Member States with an optional administrative mechanism that enables national competent authorities to require prior authorisation for exports of items which might contribute to Belarus’s military and technological enhancement or to the development of its defence and security sector, to any third country, where the exporter has been informed that there is sufficient reason to suspect that the end destination of the items may be in Belarus or that the end-use of the items may be for Belarusian entities. This measure is not intended to impose a new blanket restriction, but to equip Member States with an effective and proportionate tool to investigate and prevent possible circumvention of restrictive measures, while ensuring a harmonised interpretation and legal clarity for exporters. The scope of the indirect export prohibition clause should not be affected by this measure. It is at the discretion of Member States to decide whether this measure or the indirect export prohibition clause is to be applied as a mechanism of enforcement in cases in which the end destination of the items may be in Belarus or the end-use of the items may be for Belarusian entities.

(7)

It is also appropriate to expand into a transaction ban, the existing prohibition to provide specialised financial messaging services to certain Belarusian credit institutions and their Belarusian subsidiaries, which are relevant for the Belarusian financial system, and which are already the subject of restrictive measures imposed by the Union. In addition, it is appropriate to add exemptions related to the functioning of diplomatic and consular representations of the Union and of the Member States or of partner countries in Belarus, and, to transactions made by nationals of a Member State who are residents in Belarus. It is also appropriate to add a derogation for transactions which are strictly necessary for the divestment from Belarus or for the wind-down of business activities in Belarus. It is recalled that Union restrictive measures do not have extra-territorial effect and do not bind operators incorporated under the laws of third countries, including those of Belarus. Therefore, transactions between legal persons, entities or bodies incorporated or constituted under the law of a Member State and their subsidiaries in third countries do not qualify as a violation of this prohibition, including if credit or financial institutions subject to the ban are involved in such transactions. The exemptions and the derogation in Article 2y of Decision 2012/642/CFSP are without prejudice to the prohibition on operators in the Union to provide financial messaging services to the entities listed in Annex V.

(8)

In addition, it is appropriate to expand the list of items which might contribute to Belarus’s military and technological enhancement or to the development of its defence and security sector, by listing items which have been used by Russia in its war of aggression against Ukraine and items which contribute to the development or production of Belarus’s military systems, including chemical precursors to energetic materials, spare parts for machine tools, additional computer numerical control (CNC) machines and constituent chemicals for propellants.

(9)

Moreover, it is appropriate to expand the list of goods subject to export restrictions which might contribute to the enhancement of Belarusian industrial capacities, such as machinery, chemicals, some metals and plastics. In order to minimise the risk of circumvention of restrictive measures, it is also appropriate to extend the list of goods and technology subject to the prohibition on transit via the territory of Belarus.

(10)

Member States should, with due respect for their applicable international obligations, not recognise or enforce any injunction, order, relief, judgment of a court other than a court of a Member State or other court, arbitral or administrative decision issued in proceedings other than those in the Member States pursuant to or derived from investor-State dispute settlement proceedings in connection with measures imposed under Decision 2012/642/CFSP. The effective implementation of the no claims clause should be regarded as the public policy of the Union and the Member States for the purposes of the recognition and enforcement of arbitral awards or judicial or administrative decisions. As a result, the recognition or enforcement by Member States of an injunction, order, relief, judgment of a court other than a court of a Member State or other court, arbitral or administrative decision issued in proceedings other than those in the Member States pursuant to or derived from investor-State dispute settlement proceedings which could lead to the satisfaction of any claims in connection with measures imposed under Decision 2012/642/CFSP should be regarded as violating the public policy of the Union and the Member States. This provision should be without prejudice to the obligation of a Member State to participate and to defend itself in proceedings initiated against it and to ask for the recognition and enforcement of an award that grants it the reimbursement of costs.

(11)

While satisfaction of claims in connection with measures imposed under Decision 2012/642/CFSP is prohibited in the Union, including in out-of-court settlement proceedings, there is evidence to suggest that Belarusian persons, entities or bodies, or persons, entities or bodies acting through or on behalf of one of those Belarusian persons, entities or bodies, or owned or controlled by such persons, entities or bodies, seek or might seek to abusively initiate and pursue dispute settlement proceedings outside of the Union in connection with measures imposed under Decision 2012/642/CFSP, or seek or might seek to illegally obtain recognition or enforcement of arbitral awards granted through such abusive dispute settlement proceedings. It is therefore necessary to enable competent authorities or the Union, where applicable, to recover in proceedings before a court of a Member State any damages caused, including legal costs and costs incurred in the event of non-compliance with the arbitral award by the other party, from those persons, entities or bodies and from persons, entities or bodies that own or control those persons, entities or bodies, as a consequence of an investor-State dispute settlement in connection with measures imposed under Decision 2012/642/CFSP, provided that all available legal remedies in the relevant jurisdiction have been exercised. Competent authorities should recover such damages in accordance with Union law and customary rules of international law.

(12)

Where Member States are confronted with arbitral awards rendered against them in investor-State dispute settlement proceedings in connection with measures imposed under Decision 2012/642/CFSP, they should invoke any objection available to them in domestic or foreign proceedings for the recognition and enforcement of such awards. This includes raising the objection that the recognition or enforcement of the award would be contrary to the public policy of the country where recognition and enforcement is sought, pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.

(13)

The application of the forum necessitatis provision should be extended.

(14)

It is also appropriate to amend the title to Annex II, in order to include all the relevant provisions in which reference to that Annex is made.

(15)

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

(16)

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

(1)

the following article is inserted:

(2)

Article 1b is amended as follows:

(3)

Article 2d is amended as follows:

(4)

Article 2n is replaced by the following:

(5)

the following articles are inserted:

(6)

Article 2y is amended as follows:

(7)

Annex II is amended in accordance with the Annex to this Decision.