EU restrictive measures |
||Politically important |
|Committee's decision||Cleared from scrutiny
|Document details||Council Decision and Regulation on restrictive measures against the former Ukrainian leadership
|Legal base||(a) Article 29 TEU; unanimity; (b) Article 215 TFEU; QMV
|Department||Foreign and Commonwealth Office
|Document numbers||(a) (36684), (b) (36685),
Summary and Committee's conclusions
31.1 The Council first adopted a Decision on this issue on 5 March
2014, when 18 individuals (former President Yanukovich, two of
his sons and 15 other former Ministers and members of his administration)
were included on the annex of persons subjected to the restrictive
measures. A further Council Decision adopted in 14 April 2014
added another four individuals to the annex, and also amended
the identifying information for three listed individuals.
31.2 Then, in early February, the Council having
been provided by the Ukrainian Prosecutor General with attestations
setting out the progress of their investigations, the Council
adopted a further Council Decision and Regulation, amending the
existing criteria in order to take account of the full range of
criminal activity being investigated by the Ukrainian Authorities
that comes under the definition of misappropriation, so as to
ensure the listings remained robust.
The Committee cleared them from scrutiny on 11 February 2015 (see
paras 31.13-31.16 below for details).
31.3 Now, as part of the annual renewal process,
four individuals have been removed from the annex of listed persons;
and a further four individuals became subject to a shorter "rollover"
of three months.
31.4 The Minister's Explanatory Memorandum and the
Council Decision and Council Regulation were not received until
2 March, meaning that an over-ride of scrutiny has inevitably
arisen in order to meet the 6 March deadline for renewal.
31.5 The Minister acknowledges that the brief comments
in his Explanatory Memorandum are an insufficient explanation,
saying: "If an override of the usual scrutiny procedures
is necessary to meet this deadline, I will write in full setting
out the reasons for this." (see paras 31.17 and 31.23 below).
31.6 He then did so, in a subsequent letter of 9
March, the essence of which is that lengthy discussions resulted
in the first drafts of this Council Decision and Council Regulation,
covering this renewal and the amendments, were only circulated
to EU Partners on 25 February (see paras 31.24-31.26 below for
31.7 Once again, the process has been found wanting.
We fail to understand why, if the criteria could be amended on
29 January, it was not possible to agree on the limited subsequent
changes to the listings before 25 February. Nor why it was then
not possible for the Minister to have provided an Explanatory
Memorandum in time for our 4 March meeting. Once again, he assures
the Committee that "this is something I take seriously"
and that he has "instructed my officials to continue to raise
these concerns with colleagues in the EU".
31.8 We reproduce at the Annex to this chapter
of our Report a letter of 4 March 2015 from the Minister, on "Engaging
with EU institutions on UK Parliamentary Scrutiny". He recalls
his letter of 9 December 2014 to the then new EU High Representative
for Foreign Affairs and Security Policy (HR; Federica Mogherini)
concerning scrutiny, and professes himself encouraged that she
has said that her services will work to provide legal acts at
an earlier stage and, for annual renewal of sanctions measures,
will begin the review and renewal process at an earlier stage
to allow parliamentary scrutiny to take place.
31.9 The Minister also says that his officials
and the UK Representation have had a "productive meeting"
with senior EEAS officials as well as others in the Council
Secretariat, Latvian Presidency Team and Luxembourg Presidency
Team to ensure the UK parliamentary scrutiny process is
better understood and "to strengthen our engagement";
that his officials have agreed to return to brief EEAS Working
Group Chairs, "to ensure that all those involved with the
process of document production have a good understanding of UK
parliamentary scrutiny"; and that he and they "will
continue to engage with the EEAS and other EU institutions to
provide workshops on UK parliamentary scrutiny and meet with key
EU officials on a regular basis to ensure that scrutiny timetables
are taken into account wherever possible".
31.10 All of this is welcome. But we have been
here before; c.f. his earlier, similar representations to Ms Mogherini's
predecessor, Baroness Ashton, which, to the best of our knowledge,
produced a similar "encouraging" response but no demonstrable
improvement in performance. So, once again, the proof of the pudding
will be in the eating. With that in mind, and on the assumption
that the Minister and his officials have the necessary mechanisms
in place, we should be grateful if the Minister would write in
six months' time with his assessment of how much the EEAS performance
31.11 Also, there is the question of the FCO's
own procedures. So far as this instance is concerned, see above:
more generally, see the observations in our Reports on the recent
renewal of the restrictive measures against the Mugabe regime
and the mandate extension of the EU mission on the training of
Somali security forces (EUTM Somalia)
and our conclusions in respect of Iranian nuclear crisis at chapter
31.12 In the meantime, as no political or legal
issues arise, we now clear this Council Decision and Council Regulation
details of the documents:
(a) Council Decision (CFSP) 2015/143 of 29 January 2015 amending
Decision 2014/119/CFSP concerning restrictive measures directed
against certain persons, entities and bodies in view of the situation
in Ukraine: (36684), : (b) Council Regulation (EU) 2015/138
of 29 January 2015 amending Regulation (EU) No. 208/2014 concerning
restrictive measures directed against certain persons, entities
and bodies in view of the situation in Ukraine: (36685), .
31.13 With his Explanatory Memorandum of 2 February
2014, the Minister submitted for scrutiny a new Council Decision
and Regulation amending the existing criteria and taking account
of the full range of criminal activity being investigated by the
Ukrainian Authorities that came within the definition of misappropriation.
This resulted from the Ukrainian Prosecutor General having provided
the Council with attestations setting out the progress of their
investigations; and, following on from the submission of these
attestations, the Council having sought clarification on the activities
that constitute misappropriation of assets under Ukrainian law,
to ensure the listings remain robust.
31.14 The listings in question relate to the ongoing
asset freeze on 22 individuals associated with the former Ukrainian
Government, and who were identified as being responsible for the
misappropriation of Ukrainian State funds; this was instituted
to help prevent further asset flight, thus protecting state funds
for use by future governments, as well as supporting the rule
of law in Ukraine. The documentary evidence provided to support
these listings comprised letters from the Ukrainian Prosecutor
General indicating an intention to prosecute for the misappropriation
of state funds.
31.15 In a separate letter of the same date, the
Minister said that, being in need of renewal before 5 March 2015,
and to ensure that the listings of those targeted by these measures
remained robust, all individuals who met the amended criteria
would need to be re-listed, noting that:
"Because of the legal requirement that individuals
are notified of their relisting ahead of the renewal of the measures,
and to ensure they are provided adequate time to make any representations
against their re-listing, it has been necessary to adopt this
Council Decision and Council Regulation at short notice. If prompt
action had not been taken, it might have been impossible to re-list
any of the 22 individuals before the current measures expire,
and any assets currently frozen under those measures would have
"I therefore regret that I found myself in the
position of having had to agree to the adoption of these Council
Decisions and Council Regulations before your Committee had had
an opportunity to scrutinise the documents."
31.16 The Committee cleared the documents, and in
the circumstances outlined by the Minister, did not take issue
with his having over-ridden scrutiny.
The further draft Council Decision and Council
31.17 In his Explanatory Memorandum of 2 March 2015,
the Minister for Europe says that, as part of the current renewal,
the Council has agreed the delisting of four individuals who no
longer met the listing criteria:
"Andriy Portnov, former Adviser to the President
of Ukraine; Ihor Kalinin, former Adviser to the President of Ukraine;
Oleksii Azarov, the son of the former Prime Minister of Ukraine;
and Oleksandr Yakymenko, former Head of the Security Service of
31.18 In addition, the Minister explains:
"the listings of Olena Lukash, former Minister
of Justice; Viktor Viktorovych Yanukovych, son of the former President;
Serhii Kliuiev, businessman; and Dmytro Tabachnyk, former Minister
of Education and Science, will be renewed for a shorter time period
of 3 months in order for the Ukrainian Authorities to complete
their ongoing criminal investigations. Amendments have also been
made in an annex to the Council Decision and Council Regulation
to some of the identifying information and the statements of reasons
of the listed persons."
31.19 With regard to the timing of his Explanatory
Memorandum, the Minister says:
"Unfortunately, due to ongoing discussions between
Members of the Council, the circulation of the Council Decision
and Regulation were completed at too late a date to allow for
the usual time to be provided for scrutiny procedures before the
measures lapse on 6 March. The discussions have also been delayed
because of the amendment made in January to one of the designating
criteria, and the subsequent requirement to notify the listed
individuals of this change."
The Government's view
31.20 The Minister again emphasises that these measures
target those who were identified as being responsible for the
misappropriation of Ukrainian State funds and persons responsible
for human rights violations, and "are distinct from those
taken in response to Russia's ongoing destabilisation of Ukraine
and illegal annexation of Crimea".
31.21 The Minister also recalls that the documentary
evidence provided to support these listings consisted of letters
from the Ukrainian Prosecutor General indicating an intention
to prosecute for the misappropriation of state funds their
inclusion on the sanctions list being "to help prevent further
asset flight, thus protecting state funds for use by future governments,
as well as supporting the rule of law in Ukraine".
31.22 The Minister then says that, following on from
the provision by the Ukrainian Prosecutor General of attestations
setting out the progress of their investigations:
"the Council has agreed the delisting of 4 individuals
who are either no longer under investigation or whose activities
no longer meet the designation criteria. The listings of 4 further
individuals will be extended for 3 months in order to give time
for the Ukrainian Authorities to complete their investigations.
The remaining 14 listings have been renewed for a further 12 months.
These decisions were taken as part of a regular process by which
the EU reviews sanctions designations in light of currently available
information to ensure that the list continues to be legally robust."
31.23 Finally, the Minister says:
"The new documents will need to be adopted before
6 March 2015, to ensure that the measures remain in force. If
an override of the usual scrutiny procedures is necessary to meet
this deadline, I will write in full setting out the reasons for
The Minister's letter of 9 March 2015
31.24 The Minister begins by recalling his 2 February
Explanatory Memorandum and the Council Decision and Council Regulation
that sought to clarify the criteria to be met before an individual
can be identified as being responsible for the misappropriation
of Ukrainian state funds; and that this amendment to the criteria
had to be adopted at short notice, so that the wider review of
the whole measures could be concluded to allow adoption of new
legal documents by the 6 March renewal date.
31.25 The Minister then continues as follows:
"There were lengthy discussions amongst EU Member
States after 2 February on the review of these measures. As you
will have seen from my Explanatory Memorandum dated 2nd March,
these discussions led to a package of changes to the current listings:
four individuals were removed from the annex of listed persons;
and a further four individuals became subject to a shorter rollover
of 3 months. Due to the length of these discussions, the first
drafts of a Council Decision and Council Regulation covering this
renewal and the amendments were only circulated to EU Partners
on 25 February. I subsequently found myself in the position of
having to agree to the adoption of these documents on 5 March,
before your Committee had had an opportunity to complete your
scrutiny of the documents. Any delay in adoption would have resulted
in the entire package of measures, and the asset freezes set in
place by them, falling away."
31.26 Finally, recalling the Committee' oft-expressed
criticism that renewals of this type are not considered earlier
in the EU, reducing the possibility of the documents being scrutinised,
the Minister says:
"This is something I take seriously and I have
instructed my officials to continue to raise these concerns with
colleagues in the EU."
Previous Committee Reports
None, but see, (36632), and (36633), :
Thirty-third Report HC 219-xxxii (2014-15), chapter 9 (11 February
2015); also see (35905), and (35906), : Forty-seventh
Report HC 83-xlii (2013-14), chapter 23 (30 April 2014);
(35880), and (35881), : Forty-fourth Report HC
83-xxxix (2013-14), chapter 3 (26 March 2014); and (35848),
and (35849), : Fortieth Report HC 83-xxxvii (2013-14),
chapter 1 (12 March 2014).
Annex: Letter of 4 March 2014
from the Minister for Europe: "Engaging with EU institutions
on UK Parliamentary Scrutiny"
"As I set out in my letter to you on 15
December 2014, I wrote to High Representative Federica Mogherini
concerning scrutiny on 9 December 2014. I am writing to update
you on the High Representative's reply and our latest engagement
with the EU institutions.
"In my letter to HRVP Mogherini, I emphasised
the importance of providing documents well in advance to ensure
sufficient time for UK parliamentary scrutiny. On documents where
timetables are known, such as mission renewals, I set out the
dates by which we would need to receive documents from the EU
in order to allow for scrutiny. I also offered for my officials
to brief EEAS officials on the UK parliamentary scrutiny process.
"I am encouraged by her reply, in which
she has made clear that her services will work to provide legal
acts at an earlier stage and, for annual renewal of sanctions
measures, she will instruct her services to begin the review and
renewal process at an earlier stage to allow parliamentary scrutiny
to take place. There are of course challenges that she has highlighted,
such as unpredictable developments in CFSP and CSDP, and in the
case of sanctions, the time it takes to secure consensus amongst
Member States before legal acts can be produced. However, I think
this gives us a strong basis for working together and I am reassured
that the EEAS will work harder to ensure that documents are produced
early where possible.
"Since writing to HRVP Mogherini, my officials
visited Brussels and, with the UK Representation, held a productive
meeting with senior EEAS officials as well as others in
the Council Secretariat, Latvian Presidency Team and Luxembourg
Presidency Team to ensure the UK parliamentary scrutiny
process is better understood and to strengthen our engagement.
My officials have agreed to return to brief EEAS Working Group
Chairs to ensure that all those involved with the process of document
production have a good understanding of UK parliamentary scrutiny.
"We will continue to engage with the EEAS
and other EU institutions to provide workshops on UK parliamentary
scrutiny and meet with key EU officials on a regular basis to
ensure that scrutiny timetables are taken into account wherever
86 These measures do not affect the criteria set out
for those responsible for human rights violations. These measures
are also distinct from the measures taken in response to Russia's
ongoing destabilisation of Ukraine and the illegal annexation
of Crimea. Back
See (36694), - and (36695), -: Thirty-sixth Report HC 219-xxxv
(2014-15), chapter 19 (11 March 2015). Back
See (36656), -: Thirty-sixth Report HC 219-xxxv (2014-15), chapter
16 (11 March 2015). Back
See (36632), - and (36633), -: Thirty-third Report HC 219-xxxii
(2014-15), chapter 9 (11 February 2015). Back