On 24 July 2023, the EU Commission published updated FAQs (here and here) relating to the port ban restrictions under Articles 3eb and 3ec of the EU’s 11th Sanctions Package (implemented on 23 June 2023). We published a brief summary on the 11th Sanctions Package which can be reviewed here.
To recap, Articles 3eb and 3ec provide for the following:
1. It shall be prohibited, as of 24 July 2023, to provide access to ports and locks in the territory of the Union, by any vessel performing ship-to-ship transfers, at any point of the voyage to a Member State’s ports or locks, if the competent authority has reasonable cause to suspect that the vessel is in breach of the prohibitions set out in Article 3m(1) and (2) and Article 3n(1) and (4).
2. A competent authority shall not grant access if a vessel does not notify the competent authority at least 48 hours in advance about a ship-to-ship transfer occurring within the Exclusive Economic Zone of a Member State or within 12 nautical miles from the baseline of that Member State’s coast.
1. It shall be prohibited, as of 24 July 2023, to provide access to ports and locks in the territory of the Union by any vessel which the competent authority has reasonable cause to suspect of illegally interfering with, switching off or otherwise disabling its shipborne automatic identification system at any point of the voyage to a Member State’s ports or locks, in breach of SOLAS Regulation V/19, point 2.4, when transporting crude oil or petroleum products subject to the prohibitions set out in Article 3m(1) and (2) and Article 3n(1) and (4).
The majority of the clarifications relating to the above, are set out in the EU Commission’s “Access to EU Ports” section of the FAQs. In summary, based on these latest FAQs, the following are now clear:
- Concept of Voyage (FAQs 18, 19 and 22): Articles 3eb(1) and 3ec(1) allow an EU authority to refuse EU ports and locks access to any vessel if during that vessel’s voyage, that EU authority has reasonable cause to suspect a breach of the relevant rules specified thereunder. “Voyage” has been clarified as the period starting from when that vessel loads the oil or petroleum product until it has been fully discharged.
- Reporting of STS (FAQ 23): Article 3eb(2) is a separate provision to Article 3eb(1), in that all vessels calling into ports and locks in the EU must notify the competent authorities at least 48 hours in advance of any STS operations within the exclusive economic zone of a Member State or within 12 nautical miles from the baseline of that Member State’s coast. FAQ 23 states that competent authorities should not grant access if that vessel fails to notify the competent authority accordingly.
- No Port / Lock Shopping (FAQ 24): The intention is for Articles 3eb and 3ec to be applied harmoniously across all EU Member States. Accordingly, if a vessel has been refused access thereunder, the competent authority will immediately notify all other relevant competent authorities including port authorities to ensure that such vessel does not have access to other EU ports and locks.
- Reasonable Cause to Suspect (FAQs 27 and 28): Competent authorities should conduct a factual, risk analysis based on objective indicators to enable it to infer knowledge or form suspicion of a relevant breach under Articles 3eb or 3ec. The EU Commission with the assistance of the European Maritime Safety Agency will publish notices of risky behaviour. The non-exhaustive factors provided in the FAQs are currently as follows:
– Port of origin and port of calls during the voyage, including mooring at anchorage
– Insurer and coverage of insurance
– Cargo declarations
– Proof of carrying price capped Russian crude oil or petroleum products
– Route the vessel has undertaken in light of the notified cargo to be transporting, and explanations provided in that regard
– History of a vessel’s activities, including security notifications
– Past track-record of denials to enter Member States’ ports
– Information shared by other Member States, in particular neighboring countries, or the Commission
– Compliance with notification obligations
For ship-to-ship transfers:
– Previously operated ship-to-ship transfers
– Compliance with mandatory notifications and reporting obligations for ship-to-ship transfers under EU and international law, including for the transport of dangerous goods or polluting goods, namely crude oil and petroleum products, as well as security notifications
For AIS switching off or manipulations:
– Frequency of occurrence
– Length of occurrence
– Area of occurrence
– Explanations provided by the vessels when asked about the reasons for the occurrence
– Reasonableness of the route taken by the vessel prior to, or after turning off the AIS, and of the location of the vessel when the AIS was turned off
– Publicly available information about illegal oil operations happening in the area of the occurrence
- Bunkering services to vessel transporting Russian oil or petroleum products (FAQ 18C of Oil Price Cap Guidance): Notably, the EU Commission has maintained via FAQ 18A that the bunkering of an EU vessel of Russian petroleum products is generally restricted under Article 3m. It has however clarified via the latest FAQ 18C that so long as a vessel is conducting price cap compliant Russian oil and petroleum product voyages to third countries, such vessels may call at an EU port to receive bunkering services so long as the competent authorities receive all relevant documents evidencing price cap compliance including but not limited to the attestation documents.
The EU had also previously updated its FAQs on various issues on 18 July 2023. Most relevant to the transportation and commodities supply chain would be the update to the “Imports, purchase and transfer of listed goods” section (here) which provided clarification on the evidential requirements relating to the restrictions under Article 3g(1)(d) on transactions relating to (i) iron and steel products listed in Annex XVII; (ii) processed in a third country; and (ii) such processing incorporated iron and steel products of Russian origin listed in Annex XVII. In particular, FAQ 11 of that section provides that the mill test certificate would be sufficient evidence of the country of origin of the iron or steel used as inputs.