OJSC Rosneft Oil Company,R (On the Application Of) v Her Majesty's Treasury & Ors

A national court which cannot itself invalidate an EU measure may refer questions of validity or interpretation to the Court of Justice where answers are necessary to determine judicial review proceedings. A pending annulment application before the General Court does not create an absolute bar to a reference, particularly where admissibility is uncertain, interpretation is required, or uniform application across Member States is important.

For criminal liability, legal certainty does not require absolute precision. General statutory categorisations may be valid despite marginal grey areas if the individual can reasonably foresee the consequences of conduct, assisted where appropriate by judicial interpretation and legal advice.

Rosneft challenged United Kingdom measures implementing EU sanctions adopted in response to Russia’s actions concerning Ukraine. It also challenged the validity and interpretation of the underlying Council Decision and Regulation, including provisions concerning oil exploration, financial assistance, transferable securities and global depositary receipts.

Rosneft had separately brought annulment proceedings before the General Court. The High Court had earlier refused interim relief. The central issues were whether a reference to the Court of Justice was necessary and appropriate despite the pending annulment proceedings, and whether the relevant sanctions provisions were valid and sufficiently certain to support criminal penalties.

1. Reference made. The Court referred all questions in the Schedule to the Court of Justice under Article 267 TFEU. Permission for judicial review was granted, the domestic proceedings were stayed, costs were reserved and liberty to apply was granted.
2. The High Court could not declare the EU Regulations invalid. Where it had doubts about validity, it was entitled to refer questions to the Court of Justice. The existence of pending annulment proceedings before the General Court did not impose an absolute rule requiring the domestic court to wait.
3. It was appropriate to proceed concurrently because the General Court might determine admissibility without reaching the merits, annulment proceedings did not principally provide authoritative answers on interpretation, and a reference would obtain the benefit of submissions from EU institutions and other Member States. Consistency and uniformity in applying the sanctions regime were material considerations.
4. The Court regarded the expressions relating to “waters deeper than 150 metres” and “shale” as arguable but provisionally considered them sufficiently clear. Legal certainty permits general categorisations and marginal grey areas where the wording, assisted if necessary by judicial interpretation, enables a person to know what conduct may attract criminal liability. Reasonable foreseeability may require professional persons to obtain legal advice and take particular care.
5. The Court expressed provisional views that Article 99(1)(d) of the Partnership Agreement might provide a permitted security derogation, and that the Financial Conduct Authority’s construction of Article 5(2) concerning new global depositary receipts was supported by the Regulation’s language and purpose. Those issues nevertheless required definitive determination by the Court of Justice.