EU Restrictive Measures and Private International Law – Update
Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine was from the very beginning doomed to undergo frequent amendment.
The first text contained only 14 articles. After the last modification in February 2025 (the thirty-fifth in a row), the number has more than tripled. As an anecdote, I note that the new provisions keep the original numbering, adding (in the English version, at least) a letter to it; a new insertion related to a previous one holding a number and a letter gets another letter. It may be better than simply re-numbering, but the outcome becomes a bit confusing.
The Regulation has an obvious impact on cross-border private transactions. In 2014, it already included under Article 11 a ban on the satisfaction of specific claims, and a rule on the burden of proof in proceedings for the enforcement of said claims. The provision has experienced several changes in the form of insertions and replacements in 2022 and 2024, which did not take the form of PIL rules, although, as said, they affect cross-border relations (see, on the difficulties of interpretation, case C-802/24, Reibel, currently pending). Besides, further recent additions to the Regulation immediately after Article 11 are of direct interest from a PIL perspective.
To start with, in June 2024, Articles 11a and 11b were inserted enabling Member State nationals and companies to obtain compensation from Russian individuals and entities that caused damages to them:
- as a consequence of claims lodged with courts in third countries by those Russian individuals and entities, in connection with any contract or transaction the performance of which has been affected by the measures imposed under the Regulation, or
- by any persons, entities or bodies referred to under Article 11(1) that benefited from, or issued, a decision pursuant to the Decree of the President of the Russian Federation No. 302 of 25 April 2023 as subsequently amended, or pursuant to related or equivalent Russian legislation, provided that such decision is illegal under international customary law or under a bilateral investment treaty entered into between the relevant Member State and the Russian Federation.
[Presidential Decree No. 302 the Russian Federation established a legal framework to authorize the Government to take control of Russian assets owned or managed by investors associated with ‘unfriendly’ foreign States].
In either case, the claim for compensation is nevertheless conditional upon the lack of effective access to remedies, for example under the relevant bilateral investment treaty.
In December 2024, the 2014 Regulation was again amended. This time, a new Article 11c was inserted creating a ban on the recognition or enforcement in a Member State of any court decision pursuant to, or derived from, Article 248 of the Arbitration Procedure Code of the Russian Federation or equivalent Russian legislation. For those not familiar with Article 248 of the Arbitration Procedure Code: pursuant to it Russian courts have already issued anti-injunctions prohibiting the initiation or continuation of proceedings in foreign courts or tribunals on the part of European companies against Russian companies; the injunctions are usually coupled with disproportionately high financial penalties in cases of failure to comply. Recital 8 of the amending Regulation explains: ‘The Union considers that the manner in which Russian courts issue such anti-suit injunctions and fines is in clear violation of established international principles and long-standing practices in the resolution of international business disputes’.
The 2024 changes (which have themselves experience a few amendments afterwards) did not address international jurisdiction. In fact, until very recently, the 2014 Regulation had no rules on jurisdiction, but referred to the existing provisions of Union and Member State law regarding jurisdiction in civil and commercial matters, including those concerning interim relief.
The situation is different since February 2025. According to Article 11d of Regulation 833/2014,
Where no court of a Member State has jurisdiction pursuant to other provisions of Union law or of the law of a Member State, a court of a Member State may, on an exceptional basis, hear a claim for damages brought pursuant to Article 11a or 11b, provided that the case has a sufficient connection with the Member State of the court seised.
In other words, a forum necessitatis has been added to the already existing grounds for jurisdiction in civil and commercial matters.
Interestingly, the amending Regulation also gives guidance on the interpretation of ‘sufficient connection’, explaining in Recital 39 that the condition is met ‘for example where the claimant is domiciled in, or incorporated under the law of, that Member State.’
Moreover, it should also be noted that immediately before, Recital 38 addresses the meaning of ‘being deprived of effective access to the remedies under those domestic jurisdictions’. I indicated before that the requirement is not met, for the purposes of suing in a Member State under Articles 11a and 11 b, if the claimant has access to remedies abroad under an investment bilateral treaty. As of February 2025,
In situations where Russia or another third country takes measures to frustrate compliance with Regulation (EU) No 833/2014, Union operators can be regarded as being de facto deprived of having effective access to the remedies under those domestic jurisdictions.
I assume we will learn soon, by way of practical examples, what the actual reach of this enlargement implies – especially in combination with the forum necessitatis.