OJSC Rosneft Oil Company, R (on the application of) v HM Treasury & Ors

Interim relief will not be granted where the alleged uncertainty in criminal implementing legislation concerns only borderline applications and the provision retains an ascertainable meaning capable of certain application in some cases. The common-law threshold is high. Article 7 of the Convention permits a degree of uncertainty at the margins, particularly where professional persons can obtain appropriate legal advice. In applications concerning measures implementing EU sanctions, the court must also consider whether relief is necessary to prevent serious and irreparable harm and the interests and effectiveness of the EU regime. Purely financial loss is insufficient. The balance of convenience may therefore favour allowing the implementing measure to take effect.

Rosneft sought interim relief in judicial review proceedings challenging UK measures implementing EU sanctions against Russia. The immediate application concerned Article 5A of the Export Control (Russia, Crimea, Sevastopol) Sanctions Order 2014, which created criminal liability for knowingly engaging in activity prohibited by Article 3a of the EU Regulation concerning services for certain oil projects in Russia.

Rosneft argued that terms including deep water, arctic and shale oil projects were too uncertain at common law and under Article 7 of the European Convention on Human Rights. It also sought to rely on the domestic interim-relief principles and disputed the relevance of its pending annulment proceedings before the EU General Court.

1. The application for a stay of Article 5A was refused. The court directed that the substantive judicial review claim should proceed to a rolled-up hearing addressing permission and, if granted, the substantive claim.

2. The common-law test in Percy v Hall is demanding. Legislation is not invalid merely because its boundaries are debatable. It is invalid only where its language has no ascertainable meaning or its effect is incapable of certain application in any case. The terms used in Article 3a and Article 5A did not reach that threshold.

3. The existence of grey areas did not establish unlawful uncertainty. It was sufficiently clear that certain activities, such as exploration in sea close to the North Pole or at depths of 1,000 metres or more, fell within the prohibition. Departmental recognition that clarification might be desirable did not alter that conclusion.

4. The reasoning in Cantoni v France supported the conclusion under Article 7. Legislative categorisation may create a penumbra of doubt at the margins, provided the law is sufficiently clear in the large majority of cases. Reasonable legal advice may be necessary, especially for persons engaged in professional activity.

5. Whether the Zuckerfabrik approach or the American Cyanamid v Ethicon (No. 1) principles as modified by ex parte Factortame (No. 2) applied, relief was unjustified. Rosneft faced no prosecution risk under Article 5A, and any harm was attributable to the sanctions rather than the criminal provision. Purely financial loss was insufficient. The interests of the EU and the risk of weakening the cumulative effectiveness of sanctions also favoured refusal of relief.

6. The court reserved its position on standing under the Human Rights Act 1998, but accepted that Rosneft had standing under domestic public-law principles.

First-instance judicial review proceedings. The judgment records an earlier order by Collins J on 21 November 2014 directing an oral hearing of the interim-relief application.