Contents
Judgment of the Court (Fifth Chamber)12 February 2026note(Reference for a preliminary ruling — Common Foreign and Security Policy — Restrictive measures taken in view of Russia’s actions destabilising the situation in Ukraine — Regulation (EU) No 833/2014 — Article 5k(1)(c) — Prohibition on awarding and continuing the performance of any public contract or concession to or with a natural or legal person, entity or body acting on behalf or at the direction of an entity referred to in point (a) or (b) of this paragraph — Award of a public contract by the authorities of a Member State to a resident company two of whose three members of its administrative board are Russian nationals and one of those Russian nationals, who is the chair and the chief executive officer of that administrative board, is also sole administrator of the parent company of the company concerned)In Case C‑313/24,REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 26 April 2024, received at the Court on 29 April 2024, in the proceedingsOpera Laboratori Fiorentini SpAvMinistero della Cultura,Gallerie degli Uffizi,A.L.E.S. – Arte Lavoro e Servizi SpA,joined party:Scudieri International Srl,THE COURT (Fifth Chamber),composed of M.L. Arastey Sahún, President of the Chamber, J. Passer, E. Regan, D. Gratsias and B. Smulders (Rapporteur), Judges,Advocate General: L. Medina,Registrar: C. Di Bella, Administrator,having regard to the written procedure and further to the hearing on 5 March 2025,after considering the observations submitted on behalf of:– Opera Laboratori Fiorentini SpA, by F. Iuliano, avvocata,– Scudieri International Srl, by L. Manetti and D. Nitti, avvocati,– the Italian Government, by S. Fiorentino and G. Palmieri, acting as Agents, and by C. Pluchino, avvocato dello Stato,– the Netherlands Government, by E.M.M. Besselink, M.K. Bulterman and A. Hanje, acting as Agents,– the Austrian Government, by J. Schmoll and C. Pesendorfer, acting as Agents,– the European Commission, by M. Carpus-Carcea, L. Malferrari and L. Puccio, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 26 June 2025,gives the following
Judgment
1This request for a preliminary ruling concerns the interpretation of Article 5k(1)(c) of Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 229, p. 1), as amended by Council Regulation (EU) 2022/576 of 8 April 2022 (OJ 2022 L 111, p. 1) (‘Regulation No 833/2014’).
2The request has been made in proceedings between Opera Laboratori Fiorentini SpA and the Ministero della Cultura (Ministry of Culture, Italy), the Gallerie degli Uffizi (Uffizi Gallery, Italy), A.L.E.S. – Arte Lavoro e Servizi SpA and Scudieri International Srl concerning the lawfulness of the award to Scudieri International Srl of a public contract for the provision of certain services to the Uffizi Gallery, on the ground that that award is contrary to the prohibition laid down in Article 5k(1)(c) of Regulation No 833/2014.
Legal context
European Union law
Regulation 2022/576
3Recitals 2 to 4 of Regulation 2022/576 state:(2) Regulation [No 833/2014] gives effect to certain measures provided for in Council Decision 2014/512/CFSP [of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 229, p. 13)].(3) On 8 April 2022, the Council adopted Decision (CFSP) 2022/578, amending Decision [2014/512 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2022 L 111, p. 70)]. It extends the list of controlled items which might contribute to Russia’s military and technological enhancement or the development of its defence and security sector. It introduces additional import restrictions on certain goods from Russia, in particular on coal and other solid fossil fuels. It also introduces further export restrictions to Russia, in particular on jet fuel and other goods.(4) Decision [2022/578] also prohibits the award and continued execution of public contracts and concessions with Russian nationals and entities or bodies established in Russia.’
Decision 2022/578
4Recitals 5 and 6 of Decision 2022/578 state:(5) In its conclusions of 24 March 2022, the European Council stated that Russia’s war of aggression against Ukraine grossly violates international law and is causing massive loss of lives and injury to civilians, and that the Union remains ready to close loopholes and target actual and possible circumvention of the restrictive measures already adopted, as well as to move quickly with further coordinated robust sanctions on Russia and Belarus, to effectively thwart Russian abilities to continue the aggression.(6) In view of the gravity of the situation, and in response to Russia’s military aggression against Ukraine, it is appropriate to introduce further restrictive measures. … It is also appropriate to prohibit the award and continued execution of public contracts and concessions with Russian nationals and entities or bodies established in Russia. …’
Decision 2014/512
5Article 1h(1) of Decision 2014/512, as amended by Council Decision (CFSP) 2022/1271 of 21 July 2022 (OJ 2022 L 193, p. 196), is worded as follows:‘It shall be prohibited to award or continue the execution of any public or concession contract falling within the scope of [Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1), Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65), Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243) and Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17 and 2004/18 (OJ 2009 L 216, p. 76)] …, to or with:(a) a Russian national, a natural person residing in Russia, or a legal person, entity or body established in Russia;(b) a legal person, entity or body whose proprietary rights are directly or indirectly owned for more than 50% by an entity referred to in point (a) of this paragraph; or(c) a natural or legal person, entity or body acting on behalf or at the direction of an entity referred to in point (a) or (b) of this paragraph, including, where they account for more than 10% of the contract value, subcontractors, suppliers or entities whose capacities are being relied on within the meaning of Directives [2009/81], [2014/23], [2014/24] and [2014/25].’
Regulation No 833/2014
6Recital 2 of Regulation No 833/2014 states:‘On 22 July 2014, the Council [of the European Union] concluded that should Russia fail to respond to the demands formulated in the European Council conclusions of 27 June 2014 and in its own conclusions of 22 July, it would be ready to introduce without delay a package of further significant restrictive measures. It is therefore considered appropriate to apply additional restrictive measures with a view to increasing the costs of Russia’s actions to undermine Ukraine’s territorial integrity, sovereignty and independence and to promoting a peaceful settlement of the crisis. …’
7Article 5k(1) of Regulation No 833/2014 provides:‘It shall be prohibited to award or continue the execution of any public or concession contract falling within the scope of the public procurement Directives … to or with:(a) a Russian national, or a natural or legal person, entity or body established in Russia;(b) a legal person, entity or body whose proprietary rights are directly or indirectly owned for more than 50% by an entity referred to in point (a) of this paragraph; or(c) a natural or legal person, entity or body acting on behalf or at the direction of an entity referred to in point (a) or (b) of this paragraph,including, where they account for more than 10% of the contract value, subcontractors, suppliers or entities whose capacities are being relied on within the meaning of the public procurement Directives.’
8Article 1(25) of Council Regulation (EU) 2025/395 of 24 February 2025 amending Regulation No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ L, 2025/395) replaced Article 5k(c) of Regulation No 833/2014 by the following:‘a natural or legal person, entity or body acting on behalf or at the direction of a natural or legal person, entity or body referred to in point (a) or (b) of this paragraph’.
Italian law
9Article 2380-bis of the Codice civile (Civil Code) provides:‘The management of the company … is the sole responsibility of the administrators, who shall carry out the necessary operations to give effect to the corporate purpose. …The administration of the company may also be entrusted to non-shareholders.…’
10Article 2475 of the Civil Code, entitled ‘Administration of the company’, provides, in the first paragraph thereof:‘… Unless otherwise provided in the statutes, the administration of the company shall be entrusted to one or more members appointed by a decision of the members …’
11Article 2475-bis of the Civil Code, entitled ‘Representation of the company’, provides, in the first paragraph thereof:‘The general representation of the company shall lie with the administrators.’
12Article 2497 of the Civil Code reads as follows:‘Companies or entities that, in exercising the activity of direction and coordination of companies, act in their own or others’ business interests contrary to the principles of sound corporate and business management of those companies, shall be directly liable to their members for the loss of profitability and value of the shareholding, and to the creditors of the company for the damage caused to the integrity of the company’s assets. ……’
13Article 2497-sexies of the Civil Code provides:‘For the purposes of this chapter, it is presumed, unless there is evidence to the contrary, that the direction and coordination of companies is carried out by the company or entity that is required to consolidate their financial statements or that otherwise controls them …’
The dispute in the main proceedings and the question referred for a preliminary ruling
14Following a tendering procedure, the authority known as the ‘Ministero della Cultura – Gallerie degli Uffizi (Ministry of Culture – Uffizi Gallery, Italy)’, by decision of 25 November 2022, in its capacity as contracting authority, awarded the contract for cafeteria and small catering services at the Palazzo Pitti and the Boboli Gardens, two sites forming part of the Uffizi Gallery museum complex, for a period of ten years and for an amount of EUR 8892215, excluding value added tax (VAT), to Scudieri International, a company incorporated under Italian law, having obtained the highest score among four tenderers. Another tenderer, Opera Laboratori Fiorentini, also a company incorporated under Italian law, had obtained the second-best score.
15Opera Laboratori Fiorentini challenged the lawfulness of the award decision before the Tribunale amministrativo regionale per la Toscana (Regional Administrative Court, Tuscany, Italy), claiming, inter alia, that the award of that public contract to Scudieri International constituted an infringement of the prohibition laid down in Article 5k of Regulation No 833/2014, on the ground that, during the tendering procedure, two of the three members of the administrative board of that company were Russian nationals; one of those members was, moreover, not only the chair of the administrative board and its chief executive officer, but also the sole administrator of Sielna SpA, a company incorporated under Italian law which holds 90% of the share capital of Scudieri International.
16By judgment of 25 May 2023, that national court dismissed Opera Laboratori Fiorentini’s action on the ground that the interpretation put forward by Opera Laboratori Fiorentini of Article 5k of Regulation No 833/2014 would have the effect of applying that prohibition broadly, since the successful tenderer, Scudieri International, was a company incorporated under Italian law and owned by Sielna, which was also a company incorporated under Italian law whose shareholders were natural persons who were not Russian nationals.
17Hearing the appeal brought by Opera Laboratori Fiorentini against that judgment, the Consiglio di Stato (Council of State, Italy), the referring court, observes that, according to the applicant, Scudieri International should have been excluded from the tendering procedure since Article 5k(1)(c) of Regulation No 833/2014 prohibits the award of public contracts to, inter alia, economic operators acting ‘on behalf or at the direction’ of a Russian national and that, in the present case, the successful company is acting ‘at the direction’ of Russian nationals, namely the two administrators of that company who are Russian nationals.
18The referring court states that, for its part, Scudieri International submits, inter alia, that since Article 5k(1) of Regulation No 833/2014, the purpose of which is to prevent the financing of the Russian Federation’s war activities in Ukraine through the award of public contracts to Russian-owned companies, refers to the actual recipient of the award, the nationality of the administrators of the successful company is not relevant and that the only relevant factor is the nationality of the shareholders of that company.
19According to Scudieri International, that conclusion is borne out, first, by the fact that, in a document entitled ‘Consolidated FAQs on the implementation of Council Regulation No 833/2014 and Council Regulation No 269/2014’, the European Commission, when asked whether a company established in Germany, whose chief executive officer is a Russian national and a resident in Germany, is excluded from the award or performance of public contracts, replied that that is not the case since ‘the contract is signed with the company which is established in Germany and not with its managing director’.
20Second, as regards the reference in Article 5k(1)(c) of Regulation No 833/2014 to ‘directions’ given by an entity referred to in points (a) or (b) of paragraph 1, Scudieri International argues that administrators do not direct the company, but manage it. Under Italian law, there is a clear difference between the ‘management’ of a company, which falls to the administrators, as evidenced by Articles 2380-bis, 2475 and 2475-bis of the Civil Code, and the ‘direction’ of the company, which is reserved to its shareholders or members, as is apparent from Articles 2497 and 2497-sexies of that code. Therefore, administrators cannot give ‘directions’ to the company, within the meaning of Article 5k(1)(c), with the result that that provision does not apply to the award, by the authorities of a Member State, of a public contract to a resident company managed by administrators who are Russian nationals.
21Lastly, the referring court considers that the interpretation of Article 5k(1)(c) of Regulation No 833/2014 is uncertain in another respect. The question arises whether the expression ‘entity referred to in point (a) or (b) of this paragraph’, within the meaning of that provision, must be interpreted strictly, in that it applies only to situations in which the ‘directions’ come from an ‘entity’ referred to in the list of legal subjects to which the prohibitions laid down in Article 5k(1)(a) and (b) of that regulation apply, which excludes, inter alia, ‘directions’ from Russian nationals from the scope of Article 5k(1)(c) of that regulation, or whether that expression must be understood broadly as referring to all those legal subjects, therefore including Russian nationals.
22In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Must Article 5k[(1)](c) of Regulation [No 833/2014], in so far as it prohibits the award and continued execution of public contracts and concessions to or with “a natural or legal person, entity or body acting on behalf or at the direction of an entity referred to in point (a) or (b) of this paragraph …”, be interpreted as meaning that the prohibition applies [when the public contract is awarded] to a company incorporated under Italian law with registered office in Italy, owned by [Italian companies] and with shareholders who are natural persons and who are not Russian nationals, but of which two of the three members of the board of directors are Russian nationals and one of whom, the chairman and chief executive officer, is also the sole director of the parent company which holds a 90% stake in that company?’
Consideration of the question referred
23By its question, the referring court asks, in essence, whether Article 5k(1)(c) of Regulation No 833/2014 must be interpreted as meaning that the prohibition on awarding and continuing the performance of any public contract to or with ‘a natural or legal person, entity or body acting on behalf or at the direction’ of an ‘entity’ referred to in Article 5k(1)(a) or (b) of that regulation applies where a public contract is awarded by the competent authorities of a Member State to a resident company of which two of the three members of its administrative board are Russian nationals and one of them, who is the chair and chief executive officer of that administrative board, is also sole administrator of the parent company of the company concerned.
24In that regard, the Court notes that the expression ‘on behalf or at the direction of’ in Article 5k(1)(c) of Regulation No 833/2014 is not defined by the EU legislature and that that provision makes no express reference to the law of the Member States for the purpose of determining its meaning and scope.
25In accordance with settled case-law, it follows from the need for uniform application of EU law and from the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the European Union, having regard not only to the wording of that provision but also to the context of the provision and the objective pursued by the legislation of which it forms part (judgments of 18 January 1984, Ekro, 327/82, EU:C:1984:11, paragraph 11, and of 15 April 2021, The North of England P & I Association, C‑786/19, EU:C:2021:276, paragraph 48 and the case-law cited).
26It follows that, in order to identify such an autonomous and uniform interpretation, the provisions of the Civil Code relating to company law relied on before the referring court are irrelevant on the ground that they draw a clear distinction between the ‘direction’ of a company, reserved to its shareholders or owners and which is covered by the term ‘directions’ in Article 5k(1)(c) of Regulation No 833/2014 (‘direzione’ in the Italian-language version of that provision), and the ‘administration’ or ‘management’ of a company by its administrators, which is not covered by that term.
27It also appears appropriate to note that Article 1h(1) of Decision 2014/512, as amended by Decision 2022/1271 – which, as is apparent from recital 2 of Regulation 2022/576, Article 5k(1)(c) of Regulation No 833/2014 is intended to implement – is not useful for the interpretation of that provision, since the wording of those two provisions is almost identical.
28As regards, in the first place, the wording of Article 5k(1)(c) of Regulation No 833/2014 and, in particular, the phrase ‘on behalf or at the direction of’ contained therein, it must be borne in mind that, according to settled case-law, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be given preference over other language versions. Such an approach would be incompatible with the requirement for uniform application of EU law. Where there is divergence between the various language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see judgments of 25 March 2010, Helmut Müller, C‑451/08, EU:C:2010:168, paragraph 38, and of 15 April 2021, The North of England P & I Association, C‑786/19, EU:C:2021:276, paragraph 54 and the case-law cited).
29It is apparent from a comparison of the language versions of that provision, first, that the expression ‘on behalf of’, used, inter alia, in the French-, Italian- and Maltese-language versions, is replaced by the expression ‘in the name of’ in several other versions, such as the Danish-, German-, Greek-, Dutch-, Portuguese- and Romanian-language versions, and that, in the Spanish-language version of that provision, those two expressions both appear as alternatives. Second, as regards the expression ‘selon les instructions’ (‘at the direction of’), some language versions of that provision each use a similar expression, such as the Danish-, German-, Greek-, Dutch-, Romanian- and Swedish-language versions, while other language versions of that provision, such as the Spanish-, English-, Italian-, Maltese- and Portuguese-language versions, use a concept which, in French, means rather ‘sous la direction’ (‘at the direction of’).
30In view of that divergence between the language versions of Article 5k(1)(c) of Regulation No 833/2014, it cannot be inferred from the wording of that provision alone that the prohibition which it lays down does not apply in a situation in which Russian nationals are members of the administrative board of the company to which a public contract has been awarded, since, as a general rule, an administrator has, under the applicable national law, only power to manage the company concerned, not power to ‘direct’ that company.
31Finally, as regards the question raised by the referring court whether the expression ‘entity referred to in point (a) or (b) of this paragraph’ in Article 5k(1)(c) of Regulation No 833/2014 must be interpreted strictly as referring only to the word ‘entity’, as it appears in the list of legal subjects to which the prohibitions laid down in Article 5k(1)(a) and (b) of the regulation apply, which would exclude, inter alia, Russian nationals, or whether it must be understood broadly as referring to all of those legal subjects, the Court states that, although certain language versions of Article 5k(1)(c) of that regulation, such as the English-, French- or Dutch-language versions, might suggest that such a strict interpretation should prevail, other language versions, such as the Spanish-, German- or Romanian-language versions, support, by contrast, a broad interpretation thereof, since they use the expression ‘one of the entities mentioned in point (a) or (b) of this paragraph’.
32It follows that the answer to that question cannot be identified solely in the light of the wording of Article 5k(1)(c) of Regulation No 833/2014, but requires a contextual and teleological interpretation of that provision.
33In the second place, as regards the contextual interpretation of Article 5k(1)(c) of Regulation No 833/2014, it should be noted, first of all, that point (c) supplements the list of prohibitions set out in the two preceding paragraphs, so that point (c) establishes a residual category of prohibitions, intended to prevent those laid down in those two preceding paragraphs from being circumvented, thus depriving of any practical effect all the arrangements put in place in Article 5k(1) of that regulation.
34That would be the case if the prohibitions in Article 5k(1)(a) and (b) of that regulation were not supplemented by other prohibitions applying in situations in which the entity awarded a public contract is de facto controlled by a Russian national, by a natural person residing in Russia or by a legal person, entity or body established in Russia, enabling that person to give directions to that entity despite the fact that he, she or it does not own more than 50% of its proprietary rights.
35It follows that the expression ‘entity referred to in point (a) or (b) of this paragraph’, within the meaning of Article 5k(1)(c), must be understood as referring not exclusively to the concept of ‘entity’ referred to in Article 5k(1)(a) and (b), but, in general, to all legal subjects liable to be covered by the prohibitions laid down by the latter provision.
36Next, it is useful to state that Article 5k(1)(b) of Regulation No 833/2014, the obvious purpose of which is to prevent circumvention of the prohibition laid down in Article 5k(1)(a) of that regulation and thus to ensure the practical effect of that provision, extends that prohibition to successful entities more than 50% of whose proprietary rights are owned, directly or indirectly, by an ‘entity referred to in point (a) of this paragraph’.
37If that phrase were to be interpreted strictly, as referring solely to the concept of ‘entity’ in point (a), that purpose could not be ensured, since it would follow that the award of a public contract to an entity in which a majority shareholding is acquired not by an ‘entity’ established in Russia, but by a Russian national or natural person, a legal person or a body established in Russia, would not fall within the scope of Article 5k(1)(b) of Regulation No 833/2014 and the prohibition laid down therein.
38If such a limitation of the scope of that provision were to prevail, this would clearly and gravely compromise the effective application of the prohibition which it lays down.
39Thus, the scope of Article 5k(1) of Regulation No 833/2014 would be seriously flawed if the phrases ‘entity referred to in point (a) of this paragraph’ and ‘entity referred to in point (a) or (b) of this paragraph’, set out, respectively, in points (b) and (c) of that provision, were to be understood as referring strictly and solely to the concept of ‘entity’ referred to in Article 5k(1)(a) and (b) of that regulation.
40Accordingly, in the light of that contextual analysis, the phrases ‘entity referred to in point (a) of this paragraph’ and ‘entity referred to in point (a) or (b) of this paragraph’ must be understood as referring to all the persons covered by the prohibitions laid down in Article 5k(1)(a) and (b) of Regulation No 833/2014.
41Moreover, that question of interpretation of the expression ‘entity referred to in point (a) or (b) of this paragraph’, which appeared in Article 5k(1)(c) of Regulation No 833/2014, no longer arises, since, pursuant to Article 1(25) of Regulation 2025/395, that expression has been replaced by the expression ‘a natural or legal person, entity or body referred to in point (a) or (b) of this paragraph’.
42Lastly, it may be inferred from the fact that the EU legislature chose to word Article 5k(1) of Regulation No 833/2014 in broad terms, in particular as regards the list of the various persons, entities and bodies referred to in point (a) of paragraph 1, that point (c) thereof, the expression ‘acting on behalf or at the direction of’ in particular contained therein, must be given a sufficiently broad interpretation to be capable of preserving the practical effect of the prohibitions laid down in Article 5k(1)(a) and (b) of that regulation, that is to say, to prevent those prohibitions from being circumvented.
43Accordingly, it follows from a contextual interpretation of Article 5k(1)(c) of Regulation No 833/2014 that it cannot a priori be ruled out that that provision applies to a situation such as that in the main proceedings, in which the successful company is managed by administrators who are Russian nationals. That provision would thus apply if it were to be found that those administrators have, in fact, an effective power of control over the successful company, enabling them to give directions to that company.
44In the third place, as regards the teleological interpretation of Article 5k(1)(c) of Regulation No 833/2014, it is apparent from recitals 5 and 6 of Decision 2022/578, in essence, that, in view of the gravity of the situation in Ukraine, further restrictive measures were decided by the European Union in order effectively to thwart the abilities of the Russian Federation to continue military aggression against Ukraine, and that aggression grossly violates international law and is causing massive loss of lives and injury to civilians. By virtue of those measures, the EU legislature intended to include the prohibition on awarding and continuing the performance of public contracts entrusted to Russian nationals, natural persons residing in Russia or entities or bodies established in Russia.
45Moreover, as is apparent from recital 2 of Regulation No 833/2014, the legislature considered it appropriate to apply additional restrictive measures with a view to increasing the costs of the Russian Federation’s actions to undermine Ukraine’s territorial integrity, sovereignty and independence and to promoting a peaceful settlement of the crisis.
46It follows that the primary objective of the regime of restrictive measures imposed in Article 5k(1) of Regulation No 833/2014 is to ensure that the financial resources of the Russian Federation enabling it to continue its military aggression against Ukraine are effectively undermined and, therefore, further to increase pressure on the Russian Federation to put an end to that aggression (see, to that effect, judgments of 5 September 2024, Jemerak, C‑109/23, EU:C:2024:681, paragraphs 53 and 54, and of 30 April 2025, Generalstaatsanwaltschaft Frankfurt am Main (Export of cash into Russia), C‑246/24, EU:C:2025:295, paragraphs 30 and 31).
47The prohibition laid down in Article 5k(1) of Regulation No 833/2014 contributes to that primary objective, in so far as it seeks to mitigate the risk that public funds from public procurement contracts may be diverted from the successful entity to the Russian economy and thus be used by the Russian Federation to finance its military aggression against Ukraine.
48A priori, a situation such as that in the main proceedings, where the administrators of a company awarded a public contract and of its parent company are Russian nationals, but where those companies and their direct and indirect shareholders have no connection with the Russian Federation, does not present such a risk.
49Since a public contract, such as that at issue in the main proceedings, is awarded to a company, not to its administrators, it follows that the public funds paid under such a contract are awarded to the company concerned as such or, as the case may be, to its shareholders but, at least in principle, not to its administrators.
50Furthermore, neither will those administrators, as a general rule, have the power to divert those funds to the Russian economy without running the risk of their being held liable to the company of which they are the agents.
51Accordingly, the mere fact that an administrator of the successful company is a Russian national or that an administrator who is a Russian national signs, in his or her capacity as agent of that company, the contract concluded with the contracting authority is not sufficient, in itself, to support a finding that that company falls within the scope of Article 5k(1)(c) of Regulation No 833/2014, on the ground that it is acting ‘on behalf or at the direction’ of a Russian national covered by Article 5k(1)(a) of that regulation.
52However, it cannot be ruled out that, following the exhaustive examination which the competent authorities of the Member States are required to carry out before awarding a public contract to a company which is not established in Russia but which is managed by an administrator who is a Russian national, they may consider that there is evidence that, on the facts, that administrator is in a position to control the company concerned, even if he or she does not own shares in that company such as to ensure that he or she has legal control over that company, with the result that there is a plausible risk that the public funds which will be paid under the public contract at issue will be diverted to the Russian economy and are therefore likely to be used to finance the Russian Federation’s military aggression against Ukraine.
53Such an exhaustive examination must include all the relevant legal and factual circumstances, such as the particular structure of ownership and control of the tendering entity, the personal and professional connections between the persons concerned, the nature and purpose of the transactions at issue, how the parties manage and operate that entity, the documented existence of previous directions or of coordination of that entity’s actions with other entities that have already been sanctioned in the past, or statements by third parties and other evidence that is sufficiently concrete, precise and consistent.
54Article 5k(1) of Regulation No 833/2014 covers situations in which Russian persons, entities or bodies to which point (a) of that provision applies do not have a majority holding in the legal person, entity or body for the purposes of point (b) thereof, but who nevertheless have, in addition to, as the case may be, a minority shareholding, de facto control over that legal person, entity or body, on account of, in particular, extensive powers conferred on them by the shareholders of the entity concerned or of another entity which exercises effective control over the first entity as regards, in particular, its financial management or loans which they have granted to it through, as the case may be, a company which they control.
55The fact that, in the past, a person, entity or body covered by the prohibition laid down in Article 5k(1)(a) of Regulation No 833/2014 had a majority shareholding in the successful tenderer, but sold that shareholding shortly before the launch of the tendering procedure, may also constitute evidence of such de facto control.
56In that context, the competent authorities of the Member States are also required to verify whether a significant shareholding in the tendering entity is owned by intermediaries acting on behalf of Russian persons, entities or bodies covered by Article 5k(1)(a) or (b) of Regulation No 833/2014.
57Lastly, the foregoing considerations are borne out by the fact that Article 5k(1)(c) of Regulation No 833/2014 prohibits the competent authorities of a Member State which have awarded, in the past, a public contract to a resident company from continuing to perform that contract and requires them to carry out the exhaustive examination referred to in paragraph 53 of the present judgment where, during the performance of the public contract, a Russian national has been appointed as administrator of that company, the latter being, moreover, required, under that provision, to inform those authorities as soon as possible of such an appointment.
58In the light of all the foregoing considerations, the answer to the question referred is that Article 5k(1)(c) of Regulation No 833/2014 must be interpreted as meaning that the prohibition on awarding and continuing the performance of any public contract to or with ‘a natural or legal person, entity or body acting on behalf or at the direction’ of an ‘entity’ referred to in Article 5k(1)(a) or (b) of that regulation does not apply where a public contract is awarded by the competent authorities of a Member State to a resident company of which two of the three members of its administrative board are Russian nationals and one of them, who is the chair and chief executive officer of that administrative board, is also sole administrator of the parent company of the company concerned, provided that those authorities have first satisfied themselves, in the context of the exhaustive examination of all the relevant circumstances of the case which they are required to carry out each time that they intend to award a public contract to a company not established in Russia but managed by an administrator who is a Russian national, that such an award does not entail a plausible risk that the funds which will be paid to that company under the contract in question will be diverted to the Russian economy, where it has not been established or is at least highly unlikely that that administrator has de facto control over that company.
Costs
59Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Fifth Chamber) hereby rules: Article 5k(1)(c) of Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, as amended by Council Regulation (EU) 2022/576 of 8 April 2022,must be interpreted as meaning that the prohibition on awarding and continuing the performance of any public contract to or with ‘a natural or legal person, entity or body acting on behalf or at the direction’ of an ‘entity’ referred to in Article 5k(1)(a) or (b) of that regulation, as amended, does not apply where a public contract is awarded by the competent authorities of a Member State to a resident company of which two of the three members of its administrative board are Russian nationals and one of them, who is the chair and chief executive officer of that administrative board, is also sole administrator of the parent company of the company concerned, provided that those authorities have first satisfied themselves, in the context of the exhaustive examination of all the relevant circumstances of the case which they are required to carry out each time that they intend to award a public contract to a company not established in Russia but managed by an administrator who is a Russian national, that such an award does not entail a plausible risk that the funds which will be paid to that company under the contract in question will be diverted to the Russian economy, where it has not been established or is at least highly unlikely that that administrator has de facto control over that company.
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