Following the receipt of several inquiries regarding the 14th Sanctions Package on Russian Nationals, adopted on June 24, 2024, by the Council of the European Union, EBAA is pleased to enclose feedback from the Aviation Safety Department of DG Move at the European Commission, as well as valuable insights from the following experts: Nicholas Fischel of Chesneau Fischel, Ivars Mekons, of SUCCESS410.COM, and Lucie Cordier and Bertrand Rager of Custax & Legal.

EBAA understand the complexities and challenges these sanctions present, and aims to support members with clear and actionable insights. The attached documents below include comprehensive answers to the most pressing concerns.

1. Various Interpretations of 14th Sanctions Package – EBAA
2. Faqs Sanctions Russia Consolidated – European Commission

Overview

The publication of Council Regulation (EU) 2023/1214 amending the Regulation (EU) No 833/2014 in the Official Journal of the European Union marks another significant development in response to Russia’s invasion of Ukraine. This amendment brings about important clarifications pertaining to the procedural requirements for notifying competent authorities about non-scheduled flights between Russia and the Union.

Background

Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine was amended by Council Regulation (EU) 2023/427 of 25 February 2023 by inserting the following paragraphs in Article 3d:

“5.   Aircraft operators of non-scheduled flights between Russia and the Union, operated directly or via a third country, shall notify all relevant information concerning the flight to their competent authorities prior to their operation, and at least 48 hours in advance.

6.   Upon refusal of a flight notified in accordance with paragraph 5, the Member State concerned shall immediately inform the other Member States, the Network Manager and the Commission.”

Nevertheless, this insertion was unclear as to which competent authorities the relevant information concerning the flight had to be notified.

The new Council Regulation (EU) 2023/1214 was published in the Official Journal of the European Union on June 23^rd to address this issue and provide clarifications: the competent authorities of the Member States of departure or destination shall be the ones to receive notifications of non-scheduled flights between Russia and the Union.

Indeed, in Article 3d of the EU regulation 833/2014, paragraph 5 is replaced by the following:

Aircraft operators of non-scheduled flights between Russia and the Union, operated directly or via a third country, shall notify prior to their operation, and at least 48 hours in advance, all relevant information concerning the flight to the competent authorities of the Members State of departure or destination.

Q: Does the insurance ban foreseen by art 3c of Reg 833/2014 not apply to an aircraft that is not being flown in Russia, but is owned by a person which resides outside of Russia, or by a company established outside of Russia, even if that person has Russian citizenship or that company is Russian owned.

A: “The insurance question is quite complicated, but basically it is possible to provide insurance to an aircraft that is not flown in Russia or owned by a person in Russia. If a Russian owner is not on asset freeze list and does not live in Russia, then he can get insurance for his aircraft (but is prohibited from flying in the EU).

However, there are some caveats and the insurance companies will probably want to be absolutely certain they do not fall foul of the sanction rules. For example:

• A persons residence in the EU: Because residence rules are national, it is possible to have residence both in an EU Member and in Russia. This may be difficult to check for the insurance company.
• Company form: If the owner is Russian, or the company e.g. mainly serves the Russian market etc. then its actual provenance may be questionable even if it is on paper established e.g. in some Caribbean jurisdiction.
• Use of strings of front companies effectively hiding the true UBO.

There are a multitude of personal situations and company forms, so these are cases the insurance companies and local authorities will need to examine on a case-by-case basis, and consequently it is difficult to give a black-and-white answer, even if in principle it is possible to provide insurance in such cases.

Q  Is the below interpretation correct:

“It is not prohibited, under Article 3c, to provide repair /maintenance to:

– aircraft which is owned by a person which resides outside of Russia, or by a company established outside of Russia, even if that person has Russian citizenship or that company is Russian owned, unless the aircraft is being used or will be used for providing air transport services between points inside Russia (whether in connection or not with an international service).”

When an aircraft is owned by a natural or legal person, entity or body in Russia, and is leased to a non-Russian airline/company, it can be repaired/maintained if the leasing contract imposes on the lessee the obligation to maintain that aircraft?

A: “The interpretation is essentially correct, even if not quite complete. Please note that whilst a Russian owned aircraft that is not used to fly in Russia may be maintained in the EU, it cannot be flown in the EU, regardless of whether it has been leased to a non-Russian entity. Hence also ferry flights to the maintenance facility are forbidden, which makes this alleviation slightly less useful.

It is important to note that we have two rather different cases in the aviation sanctions:

1. Art 3c of Reg 833/2014, applies amongst other things to aircraft being flown in Russia or to any person or entity in Russia. For them that article also foresees a prohibition of all kinds of technical services, including maintenance in paragraph 3.
2. Art 3d of Reg 833/2014, applies to aircraft owned, chartered, controlled etc. by Russian entities, being flown in the EU. For them no maintenance ban is foreseen, but they cannot fly in the EU.

Your quote in italics seems to refer to the latter situation, in which maintenance would be possible.”

Update by the European Commission regarding the interpretation of Art 3c of Reg 833/2014 as regards to the maintenance of Russian-owned aircraft.

“Any natural or legal person, entity or body in Russia” should be understood as covering any natural person which is a resident of Russia, and any legal person, entity or body established in Russia, independently of their citizenship/ownership. A contrario, the expression does not cover Russian citizens or Russian owned companies which are not resident in Russia/established in Russia.

“For use in Russia” should be understood as covering the sale/supply/transfer/export of goods/services which would be used in Russia, including operations between two points in Russia.

In light of the above:

It is prohibited, under Article 3c, to provide repair /maintenance services to:

– any aircraft operated by a Russian air carriers, as Russian air carriers fall in the scope of “natural or legal persons, entities or bodies in Russia”;

– any aircraft owned by a person which is a resident of Russia, or by a company established in Russia, independently of their citizenship/ownership, as such persons/companies also fall in the scope of “natural or legal persons, entities or bodies in Russia”;

– any aircraft, independently of its ownership, which is being used or will be used for providing air transport services between points inside Russia (whether in connection or not with an international service).

For the sake of clarification, this prohibition applies also if the abovementioned aircraft are grounded in the EU.

It is not prohibited, under Article 3c, to provide repair /maintenance to:

– aircraft which is owned by a person which resides outside of Russia, or by a company established outside of Russia, even if that person has Russian citizenship or that company is Russian owned, unless the aircraft is being used or will be used for providing air transport services between points inside Russia (whether in connection or not with an international service).

When an aircraft is owned by a natural or legal person, entity or body in Russia, and is leased to a non-Russian airline/company, it can be repaired/maintained if the leasing contract imposes on the lessee the obligation to maintain that aircraft.

Please note that the above explanation constitutes an assessment of the Commission services, but that ultimately Member States are competent for the implementation of the sanctions.

EASA published a second FAQ with new questions. This can be downloaded on the left. 

EASA updated its Conflict Zone Information Bulletin to reflect an opening of a portion of Moldovan airspace. This reflects a decision taken by the Integrated EU Aviation Security Risk Assessment group, following the decision of the Moldovan government to open this section of its airspace to traffic.

EBAA’s general guidance for members is as follows:

1. Act with caution; if you are unsure, do not go ahead with a flight without gaining confirmation from the relevant authorities (you can email us your questions).
2. Ensure you maintain written / documented evidence of your due diligence carried out to check the flight with any Russian passenger is not impacted by the regulation.
3. Be very careful in your checks and ensure you have covered the potential for dual nationality.

In the next week, EASA in cooperation with the Commission, will create their own FAQ. As soon as this goes live a hyperlink will be added to this page.

The current situation develops rapidly, and EBAA works with authorities to clarify and provide as clear a picture as possible. However, EBAA will update the below list whenever possible. Keep in mind, this is not legal advice but mere guidance and recommendations. The below answers have been received from the Commission based on the questions put forward by the EBAA for clarification:

How can an operator check whether new customers have connections to Russia when receiving requests (e.g. potentially dual citizens Russia + EU country)?

They need to do “due diligence” and actively question potential customers. EBAA realises it may feel unnatural in the Business aviation sector, but these are exceptional circumstances so normal practises do not suffice. If asked to provide an aircraft, EBAA operators need to question every customer to verify that they are not either themselves Russians or acting on behalf of a Russian entity. Operators are also recommended to go beyond just asking the passenger to state or sign something and see for example what languages the customers use, how their luggage looks (i.e. signs of frequent Russian travel etc) to determine what the actual truth is.

If a person was born to an EU father and Russian mother, how do we categorise this person?

The parents’ nationality does not matter. What nationality(ies) the person him/herself has is what is important.

If a person has dual or multiple passports how can we identify the status of the person who can fly?

If one of those passports is a Russian passport, they are subject to sanctions. As for how to find out, the response to the first question applies.

What will Russian citizens now have to do to prove they aren’t subject to EU restrictions?

If it is established that they are Russian citizens and the aircraft would be owned, chartered or otherwise controlled by them, then there remains nothing to prove as they are subject to the sanctions. The only exception is if they can provide a derogation issued by each EU State to be overflown, in accordance with Article 3d(3) of Regulation (EU) 833/2014. However, this is only likely in humanitarian (e.g. MedEvac), diplomatic or other very strictly limited situations.

Is there already a clear position on what the fines/sanctions exactly are, for each type of violation (e.g. a/c transactions with a Russian entity, flying Russian customers etc.)?

Enforcement in the form of measures such as fines, impounding property, removing licences etc. is a matter for national jurisdiction, but, as foreseen under Article 8, the penalties must be effective and dissuasive.

There have been flights between EU countries that refused entry into the destination country because the pilot was a Russian national – while the pilot is not financially involved apart from his employment and has been living and working in the EU for the past 10 years or so. Is that an action compliant with the latest guidelines/regulations?

We are not aware of any of such situations currently.

Are there any guidelines for “repatriation” of EU-registered a/c and/or EU nationals stuck in Russia? Can they organise their trip in legs, e.g. fly Russia – UAE (or any non-EU state) and then further to the EU? Is that a viable and legal solution?

Permission for repatriations – if any – are issued by the Member States.  Genuine repatriation flights could be considered in the context of the Regulation. Measures to ensure that repatriation flights are genuine could be the following:

The operator must demonstrate that the flight is genuinely repatriation and not just a regular scheduled flight that happens to have missed the start of the ban. E.g. a plane flying in empty to pick up pax;

1. Passengers should be identified by the local consulate;
2. The plane must only carry Russian citizens and residents without return flight or connecting flight outside Russia;
3. Authorities must check every pax to determine genuine repatriation;
4. A flight with just a handful of pax on board could be an indication that the flight is not genuinely a repatriation flight; the same goes for a flight operated by private or business jet;
5. Repatriation flights usually take place soon after the event in question; additional checks may be required when this is not the case.
6. Authorities should also consider that repatriation could also take place through other flight connections and other modes of transport.

Who “controls” the flight? The text “any non-Russian-registered aircraft which is owned or chartered, or otherwise controlled by any Russian natural or legal person, entity or body”. In aviation, the AOC holder controls the flight. What is the interpretation of the commission and how can we ensure that legitimate EU business is not stopped using these assets as this would punish the EU entity, not the Russian?

The term “controls” goes well beyond who is the AOC holder and does not relate to the ownership and operational control rules or Air Operations rules in this case. For example, if an aircraft is chartered by an individual, then that individual has the say over when and where it flies, while the operator will have control on operational matters (e.g. fuel planning, mass &balance, selection of alternates, etc). Hence the person chartering the aircraft is in control over the flight and the AOC holder merely delivers that service.

Do we have any more info about how operators can apply for exemptions, beyond that doc published by Eurocontrol? We understand that the only accepted categories are urgent humanitarian flights and emergency diverts? But what if an operator wants to return an aircraft?

By way of derogation, the competent authorities may authorise an aircraft when determined that it is required for humanitarian purposes or for any other proposal consistent with the objectives of the Regulation. This may in some cases also include the return of leased aircraft. You need to contact the Member States’ authorities to discuss whether the particular case qualifies for a derogation.

Is there anything stopping EU operators to use flight crews incl flight attendants that might have a Russian passport (incl multiple passport holders)?

No problem. If they are employed by an operator that is not subject to sanctions, they have no control of where and when the aircraft flies, then it is fine to continue to use them.

What do Management companies have to do with Russian aircraft assets that they have committed to manage?  They are legally and contractually required to work on the aircraft but are wondering how they are protected or liable now or when the sanctions are lifted from not managing the assets as per the contract if they break the contract.

The sanctions regulations prohibits the provision of services to aircraft that are subject to sanctions. Hence they must stop such management services. I am no expert in contract law, but would expect this kind of thing to fall under force majeure. In any case I am sure such management service must be done in accordance with the laws of the land.

There are a number of questions outstanding including training and maintenance tasks related to storage.

Fractionals

A Russian owner has a minority share in an aircraft, below 50%. The majority shareowners of the aircraft, are EU nationals and other non-Russians. The aircraft is based in Europe, managed and operated by an EU operator, for use by the shareholders

There have been a number of requests from non Russia based Russian nationals to fly let’s for example Dubai to the Maldives. Can these be flown by EU operators since they do not land in, take off from or overfly the territory of the Union as per the Decision?

Article 3d of Regulation 833/2014 only applies to flights that take place in EU airspace. Dubai to Maldives would not do that, so is not covered by Article 3d.

On the other hand, the operators must also keep Article 3c in mind, since that speaks of flights in Russia, so depending on the customers request, they might have a problem with intra-Russian flights.

To be precise: There might be a situation where the aircraft first flies from the EU to Dubai on an empty deadheading flight but charged to the same Russian customer that then sits in the aircraft from Dubai to the Maldives. Since the aircraft would also be de facto chartered by, and to the benefit of, this Russian person already when leaving the EU, this first leg could then fall under the sanctions even if there is no Russian person in the aircraft.

Can we fly with Russian passengers in Europe

If one of the passengers is Russian, it needs to be verified if this one Russian passenger could be considered to control the flight (i.e. be the actual instigator or renter). If not, then the flight is allowed, just like any airline flight with Russian passengers amongst other passengers who have bought a ticket.

If asked to provide an aircraft, EBAA operators need to question every customer to verify that they are not either themselves Russians or acting on behalf of a Russian entity.

Note: if someone has multiple passports and one of those passports is a Russian passport, they are considered Russians. The authorities warned that they are very afraid of people abusing “be the actual instigator or renter” and it is hence very important that all people in the booking chain can prove afterwards that they did a verification.

Please send any questions you have to rbaltus@ebaa.org.