3 Ukraine and Russia: EU restrictive
measures
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(35880)
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(b)
(35881)
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Council Decision 2014/145/CFSP of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine
Council Regulation (EU) No. 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine
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| Legal base | (a) Article 29 TEU; unanimity;
(b) Article 215 TFEU; QMV
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | Minister's letters of 17 and 19 March 2014 and
EM of 19 March 2014
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| Previous Committee Report | None; but see (35848) — and (35849) —: HC 83-xxxvii (2013-14), chapter 1 (12 March 2014)
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| Discussion in Council | 17 March 2014
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| Committee's assessment | Politically important
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| Committee's decision | For debate on the floor of the House
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Background
3.1 On 20 February 2014, EU Foreign Ministers agreed
that because of the serious deterioration of the situation in
Ukraine, the EU should immediately begin work on targeted measures
against those individuals responsible for human rights violations,
violence and the excessive use of force.
3.2 In his Explanatory Memorandum of 11 March 2014,
the Minister for Europe (Mr David Lidington) noted that:
— since that decision was taken events
in Ukraine had moved on significantly, culminating in the formation
of a new Ukrainian Government and the commencement of criminal
proceedings in Ukraine in connection with the embezzlement of
Ukrainian State funds;
— on 3 March the EU Council therefore agreed
to refocus the restrictive measures onto freezing the assets of
individuals identified as responsible for the misappropriation
of Ukrainian State funds, in addition to individuals responsible
for human rights violations;
— both criteria were agreed with a view
to strengthening the rule of law and human rights in Ukraine;
and
— on 5 March 2014, the EU Council accordingly
adopted Council Decision 2014/119/CFSP and Council Regulation
(EU) No. 208/2014, which imposed an asset freeze on 18 individuals.
3.3 Each is listed in Annex I of the Council Regulation
as:
"Person subject to investigation in Ukraine
for involvement in crimes in connection with the embezzlement
of Ukrainian State funds and their illegal transfer outside Ukraine"
and comprise former president Viktor Yanukovich,
two of his sons and 15 other former Ministers and members of his
administration.[6]
3.4 On 3 March the FAC said that:
"In the absence of de-escalating steps by
Russia, the EU shall decide about consequences for bilateral relations
between the EU and Russia, for instance suspending bilateral talks
with Russia on visa matters as well as on the New Agreement, and
will consider further targeted measures. The Council decides to
remain permanently seized, in order to be in a position to take
rapidly all necessary measures."[7]
3.5 On 6 March, an emergency European Council welcomed
the EU foreign ministers' decision and in a subsequent statement,[8]
among other things, said:
"First, we strongly condemn Russia's unprovoked
violation of Ukrainian sovereignty and territorial integrity.
We call on Russia to immediately withdraw its armed forces; and
allow immediate access for international monitors. We consider
the decision by Crimea's Supreme Council to hold a referendum
as contrary to the Ukrainian constitution and therefore illegal."
3.6 In the Prime Minister's statement to the House
on 10 March on the 6 March emergency European Council, the question
of similar restrictive measures against Russia was mooted.[9]
3.7 The situation was plainly both complex and highly
fluid, and the Government and the EU's response of intense political
and public interest and controversy. These restrictive measures
were not only likely to be a first step on a long road involving
Ukraine, but could also be applied to Russia. We therefore felt
that they should be the subject of the earliest possible debate
on the floor of the House, and recommended accordingly.[10]
3.8 On 16 March, President of the European Council
Herman Van Rompuy and President of the European Commission José
Manuel Barroso issued the following joint statement:
"As stated by all 28 EU Heads of State or
Government on 6 March 2014, the European Union considers the holding
of the referendum on the future status of the territory of Ukraine
as contrary to the Ukrainian Constitution and international law.
The referendum is illegal and illegitimate and its outcome will
not be recognised.
"The solution to the crisis in Ukraine must
be based on the territorial integrity, sovereignty and independence
of Ukraine, in the framework of the Ukrainian Constitution as
well as the strict adherence to international standards. Only
working together through diplomatic processes, including direct
discussions between the Governments of Ukraine and Russia, can
we find a solution to the crisis. The European Union has a special
responsibility for peace, stability and prosperity on the European
continent and will continue pursuing these objectives using all
available channels.
"We reiterate the strong condemnation of
the unprovoked violation of Ukraine's sovereignty and territorial
integrity and call on Russia to withdraw its armed forces to their
pre-crisis numbers and the areas of their permanent stationing,
in accordance with relevant agreements. In advancing these goals,
the Ministers of Foreign Affairs will evaluate the situation tomorrow
in Brussels and decide on additional measures in line with the
declaration of the Heads of State and Government of the EU of
6 March."
3.9 In response to this further deterioration in
the crisis, the Government arranged a general debate on Ukraine
on 18 March.[11]
The Minister's letter of 17 March 2014
3.10 The Minister recalls that the 6 March emergency
European Council, at the request of the Ukrainian Prime Minister,
agreed to bring forward signature of the political chapters of
the EU's Association Agreement (AA). No doubt recalling that,
in a sense, it was the turning-away from this Agreement by former
President Yanukovich which precipitated the present crisis, and
the concerns that some have raised in these circumstances about
the EU's "Eastern Partnership" policy of seeking to
deepen engagement with ex-Soviet Union states in general and Ukraine
in particular, the Minister says "I disagree profoundly"
with those who have argued that the EU should step back from the
Eastern Partnership and Association Agreement at this time in
order to clear the table for renewed discussions with Russia.
Russian concerns about language rights or its bases in Ukraine
are (the Minister says) legitimate matters for discussion, but
not the violation of Ukraine's territorial integrity, which occurred
before the decision to sign the political chapters of the AA and
which "we utterly condemn". The Ukrainian Prime Minister
requested that the EU support Ukraine, including through the Association
Agreement, "and we will do so".
3.11 The Minister goes on to explain that: "Nothing
additional or new to the text of the AA which was cleared from
scrutiny in 2013[12]
will now be signed". Title III covering Freedom, Justice
and Security has been excluded from the scope of the Decision
on signature. The Minister says that the Council Decision will
accordingly authorise signature of the following Titles only:
— Preamble — Article 1;
— Title I — General Principles;
— Title II — Political Dialogue and
reform, Political Association, Cooperation and
Convergence in the field of Foreign and Security Policy; and
— Title VII — Institutional, General
and Final Provisions.
3.12 The Minister explains that, pending its entry
into force, only a limited number of articles within these Titles
will be applied provisionally, once Ukraine has signed the Agreement:
the Government negotiated a limited scope for provisional application
to protect Member State competence; and the Agreement being presented
to the European Council "respects the deal reached in September".
Thus:
"under Title II, provisional application
will only cover Articles 4, 5 and 6. Articles 7 and 10, for example,
on Common Security and Defence Policy and Common Foreign and Security
Policy will not be provisionally applied. The 'Final Act' document
that will be signed by all parties also includes a commitment
to proceed to signature and conclusion of the whole agreement
in due course. A second Decision on signature would be needed
for other measures."[13]
3.13 The Minister then recalls the 6 March European
Council statement that, unless negotiations between Russia and
Ukraine produced results within days, the EU would decide on additional
measures, such as travel bans and asset freezes, and says:
"Today, on 17 March, the FAC has agreed
such measures. It agreed to travel restrictions and asset freezes
in relation to individuals responsible for actions which 'undermine
or threaten the territorial integrity, sovereignty and independence
of Ukraine'. A full list of the individuals designated will be
published by the EU on 18 March."
3.14 The Minister goes on to say that, on this occasion
and in these circumstances, the operational imperatives necessitated
his agreement to these measures prior to scrutiny (because of
the risk of asset flight, the names have to be as tightly held
as possible until they are published, and the asset freeze thus
comes into being).
3.15 Finally, the Minister notes that the FAC also
agreed to prepare further measures, which would be taken in response
to increased destabilisation of the situation in Ukraine by Russia,
and which (as Heads of State and Government agreed on 6 March)
"would lead to additional and far-reaching consequences for
relations in a broad range of economic areas between the European
Union and its Member States and Russia". The Minister undertakes
to keep the Committees updated on progress.
The Council Decision and Council Regulation
3.16 In his further Explanatory Memorandum of 19
March 2014, the Minister for Europe (Mr David Lidington) confirms
that these further sanctions measures provide for travel restrictions
and an asset freeze on certain persons responsible for actions
which undermine or threaten the territorial integrity, sovereignty
and independence of Ukraine, including actions on the future status
of any part of the territory which are contrary to the Ukrainian
Constitution.
3.17 The list is headed by Sergey Valeryevich Aksyonov,
who (in the words of the Annex to the Council Regulation):
"was elected 'Prime Minister of Crimea'
in the Crimean Verkhovna Rada on 27 February 2014 in the presence
of pro-Russian gunmen. His 'election' was decreed unconstitutional
by Oleksandr Turchynov on 1 March. He actively lobbied for the
'referendum' of 16 March 2014."
3.18 The other 20 comprise seven other Ukrainians
involved in the events in Crimea leading to the "referendum",
plus ten Russian parliamentarians and three senior Russian military
personnel likewise involved.[14]
The Government's view
3.19 The Minister says that these sanctions measures
represent part of a graduated response to Russia's involvement,
as set out in the European Council Conclusions of 6 March 2014:
"The Council was clear that limited asset
freezes and travel bans would be imposed if Russia did not immediately
engage the Ukrainian government directly in talks to de-escalate
the crisis. Russia has so far refused meaningful engagement and
has in addition made further moves against Ukraine's sovereignty,
territorial integrity and independence with its troop presence
in Crimea and support for the illegal Crimean referendum."
The Minister's letter of 19 March 2014
3.20 The Minister regrets again finding himself in
the position of having to agree to the adoption a Council Decision
and Council Regulation concerning Ukraine before the Committee
has had an opportunity to scrutinise the documents: "Events
in Ukraine continue to move forward at pace, and the European
Union needs to continue to respond to these events swiftly and
appropriately".
The Minister's letter of 21 March 2014
3.21 The Minister writes as follows:
"We spoke earlier in the week about your
concerns regarding the CFSP elements of the EU-Ukraine Association
Agreement (AA). As you know the political elements of that Agreement
are being signed at today's European Council. To my mind there
are three key points which I hope will reassure you on this issue.
"First, as I outlined in my letter to you
of Monday 17 March, the political parts of the text being signed
are identical to that which was agreed in 2012 and which cleared
scrutiny in 2013. In fact, the whole text of the AA is identical
to that of 2012 and 2013. So everything that we discussed during
the relevant debates and exchange of correspondence holds. That
includes the fact that — under Title II on "Political
dialogue and reform, political association, cooperation and convergence
in the field of foreign and security policy" — only
Articles 4, 5 and 6 on political dialogue and dialogue on domestic
reform are being provisionally applied. Articles 7 and 10,
for example, are not being provisionally applied.
I attach the text of those articles in Title II which are being
provisionally applied.
"Second, and more substantively, the provisions
in the relevant Title II of the AA are not some kind of defence
or military cooperation treaty. The provisions on military training
and exercises referred to in the treaty relate to EU CSDP missions:
this is about allowing Ukraine to participate in CSDP missions/training
and in doing so helping to improve Ukraine's defence and security
capacity, doctrine (based on NATO standards) and inter-operability.
There are no specific provisions or obligation for military exercises
in Ukraine. 'Live' military exercises are a matter for EU
Member States. These provisions are in line with other third
state CSDP partnerships. As you know, Ukraine already has a Framework
Participation Agreement on CSDP and has taken part in the anti-piracy
Operation Atalanta, including contributing a frigate earlier this
year.
"Third, I consider that even if this agreement
did contain more significant provisions on defence cooperation,
that this would be a matter for the Ukrainian Government to decide,
with whichever party they wish to agree such an agreement. The
idea that Russia (or any other State) should have a veto over
this kind of sovereign act is objectionable in the extreme. Russia's
patently illegal action over Crimea is even more objectionable."
Conclusion
3.22 As the Minister says, events continue to
move apace:
— President Putin, the Russian Parliament
and those in control of Crimea have moved swiftly to seek to incorporate
Crimea into the Russian Federation;
— on 17 March, the United States imposed
restrictive measures that included 11 Russian citizens, some of
whom are widely regarded as very close to President Putin, and
a Russian bank;
— the EU has pressed ahead on 21 March
with signature of the political provisions of the Association
Agreement (c.f. the Minister's letter at paragraph 3.10-3.12 and
3.21 above);
— on 21 March the EU has also introduced
further restrictive measures against Ukrainian and Russia citizens,
which did not include the personal associates of President Putin
"listed" by the USA;
— at the invitation of President Obama,
the G7 nations and the European Union met on the side-lines of
a nuclear summit this week in the Netherlands[15]
(in the words of the White House) to "focus on the situation
in Ukraine and further steps that the G-7 may take to respond
to developments and to support Ukraine";
— at the time of writing, President
Obama is continuing individual discussions with some EU leaders
and, on 26 March, will be participating in the EU-US summit.
3.23 In sum, the EU sanctions (both these ones
and those adopted on 21 March, which we have not yet had an opportunity
to consider) are not only of great political interest in and of
themselves — especially the difference in approach between
the US and the EU — but also form part of a wider, highly
political discussion about the right reaction to Russian behaviour,
which embraces not only key EU domestic policies, above all energy
supply, but also the inter-play between national and EU policy
and the role of the Western alliance. On arrival in Brussels,
asked if Crimea was now effectively lost to Russia, the US President
said that while it was "not a done deal", "the
facts on the ground" were that the Russian military controls
Crimea. "I think it would be dishonest to suggest there is
a simple solution to resolving what has already taken place in
Crimea"; a de-escalation of tensions would also involve "a
moving back of Russian troops from Ukraine's borders."[16]
3.24 All in all, we recommend that these restrictive
measures should be debated on the floor of the House as soon as
possible.
3.25 In the meantime, we do not object, on this
occasion and in these circumstances, to the Minister having overridden
scrutiny.
6 For full details, see http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2014:066:0001:0010:EN:PDF. Back
7
The full Council Conclusions are available at http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/141294.pdf. Back
8
The text of the statement by EU Heads of State and Government
is available at http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/ec/141372.pdf. Back
9
The text of the Prime Minister's statement and the subsequent
debate is available at http://www.publications.parliament.uk/pa/cm201314/cmhansrd/cm140310/debtext/140310-0001.htm#14031014000002
(HC Deb, 10 March 2014, cols. 25-45). Back
10
See HC 83-xxxvii (2013-14), chapter 1 (12 March 2014) for the
full background. Back
11
The record of that debate is available at http://www.publications.parliament.uk/pa/cm201314/cmhansrd/cm140318/debtext/140318-0001.htm#14031867000001
(HC Deb, Tuesday 18 March, cols. 650-701). In the light
thereof we decided to rescind this recommendation at our meeting
on 19 March, and also cleared the Council Decision and Council
Regulation. See (35848) - and (35849) -: HC 83-xxxviii (2013-14),
chapter 1 (19 March 2014). Back
12
Via a European Committee debate. Back
13
Now also see the Minister's further letter of 21 March regarding
the CFSP elements of the EU-Ukraine Association Agreement at paragraph
3.21 of this chapter of our Report. Back
14
See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2014:078:0006:0015:EN:PDF
for full details. Back
15
The Nuclear Security Summit 2014 is a world summit, being organised
in the Hague on 24-25 March, which is aimed at preventing nuclear
terrorism around the globe: see https://www.nss2014.com/en. Back
16
See http://www.irishtimes.com/news/world/europe/obama-in-brussels-as-ukraine-sanction-threat-ramped-up-1.1738682. Back
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