On 2 August 2023 evening, the EU Commission released new FAQs (here and here; word search “2 August 2023”). Of greatest interest are the two new FAQs in the “Oil Import” section, relating to STS activity relating to Russian oil and petroleum products, in EU territorial waters. We set out extracts of these two below.
In short, these FAQs state that STS activity relating to Russian oil or petroleum products in EU territorial waters are prohibited under Article 3m of Regulation 833/2014 (as amended). This is irrespective of (1) the destination of the cargo; (2) whether the cargo is price cap compliant; or (3) such STS activity is reported under Article 3eb.
By way of reminder, the new Article 3eb(1) and (2) imposes an EU port and lock access ban for (i) any vessel that has conducted STS activity within its voyage and a relevant authority has reasonable cause to suspect that the vessel is in breach of Article 3m and 3n; or (ii) any vessel that has conducted STS activity within the EEZ or 12 nautical miles from the baseline of an EU Member State but has not reported the same to the relevant competent authority. We discussed these provisions in more detail in our previous posts (here and here).
The two new FAQs referred to above are set out below:
17. Can a vessel operate ship-to-ship transfers of Russian oil in EU territorial waters, including its internal waters?
Last update: 2 August 2023
Article 3m prohibits the purchase, import or transfer of Russian oil or petroleum products into Member States. Ship-to-ship transfers (STS) could be characterised as either purchase, import or transfer, as the case may be.
In any event, such STS go beyond the mere transit of the territory of the Union and their practice does not fall under the scope of the right of innocent passage. Such STS are therefore prohibited in territorial waters, internal waters and ports of Member States, irrespective whether the oil is:
i. transported by EU or non-EU vessels,
ii. destined for the Union or a third country, or
iii. purchased at or above the price cap.
Beyond the territorial waters of a Member State, and in accordance with Article 3eb(2), any vessel that has not notified a ship-to-ship transfer within the EEZ or up to 12 nautical miles from the baseline shall be prohibited from accessing ports or locks of the Union.
18. Can a vessel operate ship-to-ship transfers of Russian oil in the EEZ of a Member State or within 12 nautical miles from the baseline of that Member State’s coast?
Last update: 2 August 2023
In accordance with Article 13, EU sanctions apply throughout the territory of the Union including its territorial waters. Beyond the territorial waters, in accordance with Article 3eb(2), any vessels performing such transfers of Russian oil must notify these to the relevant Member State. Absent such notification, port access is prohibited.
Article 3eb(2) does not affect the prohibition to import Russian oil set out in Article 3m. In addition, if an EU operator is involved, such STS transfers must comply with the price cap in line with paragraphs 1 and 4 of Article 3n.