Legal Absurdity from the European Commission

On September 8, 2023, the European Commission posted FAQ on its website, covering the procedure for the import, acquisition and transfer of goods subject to restrictive measures against Russia (Regulation No. 833/2014). This information caused quite a heated debate in the Russian media and expert community, which was largely due to a very strange understanding by the European Commission staff of the provisions of the regulation in question. The loudest outcry was sparked by clause 13, according to which the authors of the information release expressed their negative opinion regarding the possibility of importing private cars and goods used by Russian citizens for their personal needs.

According to the Commission’s initial clarifications published on September 8, 2023, Russian citizens may not import into the EU territory any goods subject to restrictive measures. The Commission makes no exception for clothing or other items of personal use. In the version as of September 12, 2023 the Commission

By doing so, the European Commission further muddied the water, bringing the whole situation to an utter legal absurdity. To begin with, the European Commission is not authorized to interpret EU legislation; and this can only be done by the EU Court of Justice within the framework of the prejudicial procedure. Second, according to Article 2 of the Treaty on the Functioning of the EU, customs regulation is within the exclusive competence of the Union, so different countries are not entitled to apply different customs rules, which is what the Commission suggests and what is actually happening now. Third, by its actions, the European Commission has demonstrated a complete lack of legal certainty.

To date, the following conclusions can be drawn. First and foremost, the publication of the European Commission’s stance in the FAQ form can be regarded as another package of sanctions, adopted in circumvention of the formal legislative procedure, which significantly changes the nature and focus of restrictive measures.

Second, the statement under review testifies to the fact that some EU institutions increasingly often resort to soft law acts rather than legislative enactments as they try to regulate relations, though this new regulation can hardly be qualified as part of the soft law. As was noted above, the information in question is not even a document. This practice greatly facilitates the implementation of policies aimed at achieving the desired goals, but it nullifies the function of law as a regulator of social relations and significantly undermines the rule of law supremacy.

Third, the new rules lead to an even greater disenfranchisement of Russian citizens in the territory of the EU countries.

On September 8, 2023, the European Commission posted FAQ on its website, covering the procedure for the import, acquisition and transfer of goods subject to restrictive measures against Russia (Regulation No. 833/2014). This information caused quite a heated debate in the Russian media and expert community, which was largely due to a very strange understanding by the European Commission staff of the provisions of the regulation in question. The loudest outcry was sparked by clause 13, according to which the authors of the information release expressed their negative opinion regarding the possibility of importing private cars and goods used by Russian citizens for their personal needs.

It follows from the analysis of the said paragraph that the European Commission has significantly tightened the sanctions regime by arbitrarily extending import restrictions not only to imported goods, but also to goods temporarily imported for personal use. In fact, the Commission established new rules which had not previously been applied and which did not directly ensue from the provision of the approved Regulation No. 833/2014. In doing so, the European Commission once again [1] failed to simultaneously amend legal acts or stick to the requisite legislative procedures. It is quite obvious that the majority of the EU Council members who voted in favor of these restrictive measures did not envisage that they would include a ban on the importation of goods for personal use. The given conclusion is confirmed by the fact that most countries have not yet started to abide by the new rules.

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Immediately after publication of the European Commission’s statement, some countries decided to comply with the new rules and prohibited vehicles with Russian registration numbers from entering their territory. Thus, the new rules were not only embraced without following the established legislative procedures, but they were actually implemented at the national level.

A few days after the new update was published, representatives of the European Commission hastened to inform that this clarification is not binding for the member states, which should themselves determine the procedure for the implementation of restrictive measures. And just four days later, on September 12, 2023, the Commission published a modified version of the new rules in the FAQ format, where it slightly tamed its statement regarding the importation of personal clothing and items, even though its stance on transportation vehicles remained unaltered.

According to the Commission’s initial clarifications published on September 8, 2023, Russian citizens may not import into the EU territory any goods subject to restrictive measures. The Commission makes no exception for clothing or other items of personal use. In the version as of September 12, 2023 the Commission made vague exceptions for hygiene items and clothing on a Russian person or in the luggage, unless national customs authorities raise a red flag.

By doing so, the European Commission further muddied the water, bringing the whole situation to an utter legal absurdity.

To begin with, the European Commission is not authorized to interpret EU legislation; and this can only be done by the EU Court of Justice within the framework of the prejudicial procedure.

Second, according to Article 2 of the Treaty on the Functioning of the EU, customs regulation is within the exclusive competence of the Union, so different countries are not entitled to apply different customs rules, which is what the Commission suggests and what is actually happening now.

Third, by its actions, the European Commission has demonstrated a complete lack of legal certainty. The posted information in the form of FAQs, actually setting new rules, is not binding; what’s more, it has no formal features of a document and does not even belong to the category of soft law.

On September 8, 2023 the first version was published, four days later it was replaced by a new one; in the future it can be removed altogether, without any consequences for the Commission. This is a totally unacceptable situation for the Union that sees itself as a concert of democratic states.

Fourth, the updated rules published by the European Commission lack any logic. If clothes and cars are forbidden to be imported into the territory of the EU, why does the European Commission set different import rules for these types of goods? This brings to mind the old Russian adage “every law has its loophole.”

As for the de-facto new rules regarding the importation of personal belongings and vehicles, not only are they at odds with the letter and spirit of the law, but they also belie the common sense.

It should be noted that the legal basis for the EU restrictive measures are the provisions of Article 215 of the Treaty on the Functioning of the EU, according to which the Council may decide to fully or partially suspend or curb economic and financial relations with one or more third countries. It is precisely the curtailment of economic and financial relations with Russia that EU acts, including Regulation No. 833/2014, were aimed at. Article 3i of the Regulation establishes a ban on the importation of goods that “generate significant revenues for Russia.” Individuals traveling privately to the EU are not participants in economic or financial relations, they are not engaged in importing or selling goods. As a rule, all goods imported into the EU territory, including personal belongings and transportation vehicles, fall under the temporary import regime and are exempt from any customs duties.

Furthermore, according to the Guidelines on Implementation and Evaluation of Restrictive Measures (Sanctions) in the Framework of the EU Common Foreign and Security Policy, restrictive measures should target those whom the EU considers responsible for a particular policy or action. Such measures should minimize adverse effects for ordinary citizens. In other words, EU sanctions policy should be based on the concept of targeted sanctions. In the case under review, the new restrictions on the import of personal belongings and private transportation vehicles solely target ordinary Russian citizens. Such measures cannot interfere with the policy pursued by the country’s leadership, whereas the temporary import of clothing, personal electronics or a car has no impact whatsoever on Russia’s military and economic potential and is not capable of ending the armed conflict in Ukraine.

Thus, it can be concluded that Regulation No. 833/2014 did not and could not provide for a total ban on the importation of any goods, including private cars and personal belongings.

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Finally, when assessing the European Commission’s stance, it should be noted that the ban on the importation of personal belongings and vehicles represents yet another discriminatory regulation against Russian citizens. Moreover, this discrimination is based solely on the citizenship (nationality) of a person, which the EU and its member states have formally been repugning for many years and which is prohibited by all regional and global conventions on the protection of human rights.

Now it is difficult to predict how the situation with the ban on personal belongings and cars may further evolve in the light of the European Commission’s clarifications. So far, we can see that not all countries are in a hurry to fulfill the Commission’s “recommendations”, which is rather unnatural for the participants of the customs union. Amending some provisions of Regulation No. 833/2014, or formal clarification of these rules by the EU Court of Justice, which could be made at the of the national court of a Member State as part of the prejudicial procedure might put an end to the debate. This requires the initiation of criminal or civil proceedings at the national court, related to the application of restrictive measures; the national court may then submit a request to the EU Court of Justice for clarification of certain provisions of the Regulation. However, proceedings in such cases may drag on for years.

To date, the following conclusions can be drawn.

First and foremost, the publication of the European Commission’s stance in the FAQ form can be regarded as another package of sanctions, adopted in circumvention of the formal legislative procedure, which significantly changes the nature and focus of restrictive measures.

Second, the statement under review testifies to the fact that some EU institutions increasingly often resort to soft law acts rather than legislative enactments as they try to regulate relations, though this new regulation can hardly be qualified as part of the soft law. As was noted above, the information in question is not even a document. This practice greatly facilitates the implementation of policies aimed at achieving the desired goals, but it nullifies the function of law as a regulator of social relations and significantly undermines the rule of law supremacy.

Third, the new rules lead to an even greater disenfranchisement of Russian citizens in the territory of the EU countries. In fact, the European Commission has granted wide discretion to national customs and other authorities in taking restrictive measures against Russians. Given the work on criminalization of acts related to violating the sanctions [2] at the EU level, soon any Russian citizen staying in the EU territory can potentially be held criminally liable, because everyone has clothes, cell phones, perfumes, etc. in their possession. If we take the logic of the European Commission’s officials further, we can model a situation where a Russian citizen can be detained and prosecuted in any EU country just for “illegal” importation of a Huawei cell phone and “Zhemchug” toothpaste into the Union. It all depends on the discretion of a particular customs officer or other law enforcement agency. Such rules are clearly discriminatory and are not characteristic of a modern democratic society.

1. Voinikov V.V. Restrictions on the Entry of Russian Citizens to EU Member States: Political and Legal Aspects. Contemporary Europe, 2023, No. 3, p. 20-32 DOI: 10.31857/S0201708323030026

2. Council Decision (EU) 2022/2332 of 28 November 2022 on identifying the violation of Union restrictive measures as an area of crime that meets the criteria specified in Article 83(1) of the Treaty on the Functioning of the European Union. OJ L 308, 29.11.2022, p. 18–21