OSJC Rosneft Oil Company v Her Majesty’s Treasury

The Divisional Court (Beatson LJ and Green J) has referred several important questions of EU law to the CJEU under Article 267 of the Treaty on the Functioning of the European Union. The Claimant, the major Russian oil company Rosneft, is the subject of wide-ranging EU sanctions imposed following Russian actions concerning Ukraine. Rosneft had already challenged the legality of these sanctions in an annulment application in the General Court of the EU and raised the same attack in the Administrative Court proceedings as part of a challenge to UK law measures implementing the EU Regulations by way of criminal offences.
 
The Administrative Court took the exceptional step of making a reference to the higher EU Court, the CJEU, despite the pendency of an identical challenge before the General Court. It rejected the argument that the UK Court should await the General Court’s decision.

The Administrative Court also referred to the CJEU several issues of construction of the EU Regulations insofar as they might seek to restrict the issuing of Global Depository Receipts of Rosneft Shares in London. Rosneft had challenged the FCA’s interpretation of the EU Regulations in this regard. Rosneft GDRs are issued in London by JP Morgan.

Of greatest interest to EU law scholars is the decision of the Administrative Court to also refer to the CJEU the novel and important issue of the ability of courts to entertain challenges to EU Common Foreign and Security Policy (CSFP) Decisions of the Council of the European Union. These are decisions which the UK argued are not within the jurisdiction of the CJEU under the EU Treaties. The Administrative Court nevertheless referred this issue to the CJEU given the importance of the principle of access to justice and the Rule of Law which are fundamental tenets of EU law; and because of its concerns that any immunity from judicial review should be narrow.

The full judgment can be read here: http://www.bailii.org/ew/cases/EWHC/Admin/2015/248.html

Pushpinder Saini QC, instructed by Joseph Hage Aaronson, acted for OJSC Rosneft Oil Company.