Below we publish the decision of Mariusz Kamiński, Minister of the Interior and Administration.

Warsaw, 29 May 2023

DECISION

Pursuant to Article 3(1) and (6) of the Act of 13 April 2022 on special measures to counteract support for aggression against Ukraine and measures to protect national security (Journal of Laws of 2023, item 129, as amended), hereinafter referred to as the “Act”, and Article 104 § 1 of the Act of 14 June 1960 – Code of Administrative Procedure (Journal of Laws of 2022, item 2000, as amended), hereinafter referred to as the “CAP”, having considered the application (reference no. R-Z-11767/2022) of the Head of the Internal Security Agency concerning the application to TECHNONICOL-INSULATION Sp. z o.o. (currently: BOERNER INSULATION Sp. z o.o.), with its registered office in Wykroty (ul. Wyzwolenia 55, Wykroty, 59-730 Nowogrodziec), KRS 0000782180, of the measures provided for in Article 1(2)–(3) of the Act, I hereby decide to:

  1. enter BOERNER INSULATION Sp. z o.o., with its registered office in Wykroty (ul. Wyzwolenia 55, Wykroty, 59-730 Nowogrodziec), KRS 0000782180, on the list referred to in Article 2(1) of the Act;
  2. apply to the entity referred to in point 1:
    1. the freezing of funds and economic resources within the meaning of Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ EU L 78 of 17 March 2014, p. 6, as amended), hereinafter referred to as “Regulation 269/2014”, which are owned, held, actually controlled or controlled by the entity referred to in point 1, in their entirety,
    2. a prohibition on making available to the entity referred to in point 1, or for its benefit – directly or indirectly – any funds or economic resources within the meaning of Regulation 269/2014,
    3. a prohibition on knowingly and intentionally participating in activities whose object or effect is to circumvent the measures indicated in points a and b,
    4. exclusion from public procurement proceedings or a competition conducted pursuant to the Act of 11 September 2019 – Public Procurement Law (Journal of Laws of 2022, item 1710, as amended).

STATEMENT OF REASONS

By letter reference no. R-Z-11767/2022, the Head of the Internal Security Agency submitted an application to the Minister of the Interior and Administration concerning the application to TECHNONICOL-INSULATION Sp. z o.o. (currently: BOERNER INSULATION Sp. z o.o.), with its registered office in Wykroty (ul. Wyzwolenia 55, Wykroty, 59-730 Nowogrodziec), KRS 0000782180, of the measures provided for in Article 1(2)–(3) of the Act.

In the statement of reasons for the application, the Head of the Internal Security Agency indicated, among other things, that:

TECHNONICOL-INSULATION Sp. z o.o. was registered on 15 April 2019, and its share capital amounts to PLN 24,549,900. The entity conducts business in the production of products made from non-metallic mineral raw materials.

The beneficial owners of the above-mentioned entity are citizens of the Russian Federation, Igor Rybakov (born 16 May 1972) and Sergey Kolesnikov (25 February 1972), who own the Polish company through entities registered in Cyprus and belonging to them (respectively RYBAKOV INDUSTRIAL MANAGEMENT LIMITED1 and INFLECTION MANAGEMENT CORPORATION LIMITED2.

Moreover, the above-mentioned citizens of the Russian Federation each hold a 50% share in the Cypriot company GIB-PPK LIMITED (DUNS: 53-634-9932), through entities registered in Cyprus and belonging to them (respectively RYBAKOV INDUSTRIAL MANAGEMENT LIMITED and SKA ASSETS MANA GEMENT LIMITED3).

According to the entry for the entity in the Central Register of Beneficial Owners4, I. Rybakov and S. Kolesnikov are the beneficial owners of the Polish company TECHNONICOL Sp. z o.o.5, whose sole shareholder is the Russian company LLC MIARA (TIN: 7705467534), which in turn is owned by the Russian entity INVEST-KROVLYA LTD (DUNS: 35-940-6216). Meanwhile, 50% of the shares in INVEST-KROVLYA LTD belong to S. Kolesnikov, and the remaining 50% belong to RYBAKOV HOLDING LLC (DUNS: 98-824-2163), whose sole shareholder is I. Rybakov.

TECHNONICOL-INSULATION Sp. z o.o. is one of three Polish companies belonging to the TECHNONICOL corporation, which also includes TECHNONICOL Sp. z o.o. 6 (NIP 5222758958), based in Piaseczno 05-500, ul. Gen. L. Okulickiego 7/9 (registered on 8 March 2005), whose primary business is wholesale trade, and TECHNON1COL-PVC MEMBRANES Sp. z o.o.7 (NIP 6121869591), based in Nowogrodziec 59-730, ul. Młyńska 3A (registered on 12 November 2019), whose primary business is the production of rubber and plastic products.

The Polish companies belong to the group known as TECHNONICOL INTERNATIONAL (tn-i.com). The corporation was founded by I. Rybakov and S. Kolesnikov in 1992. The entity currently has 57 factories in seven countries in Europe and Asia and operates in the construction sector. The owners of this entity appear on the list of the world’s wealthiest people, with fortunes estimated at approximately USD 2 billion each8. Imposing sanctions on TECHNONICOL-INSULATION Sp. z o.o. will directly reduce the company’s profits and thus directly limit the funds transferred to parent entities located in Cyprus, whose owners are citizens of the Russian Federation, Igor Rybakov and Sergey Kolesnikov.

The Internal Security Agency attached to the above-mentioned application an annex classified as a confidential document bearing the classification “restricted”.

Furthermore, according to information obtained by the Minister of the Interior and Administration from the Internal Security Agency, S. Kolesnikov is a member of the Presidium of the General Council of the social organisation “Delovaja Rossija”, a public representative of the Commissioner for the Protection of Entrepreneurs’ Rights under the President of the Russian Federation, the Commissioner for Antimonopoly Rights under the President of the Russian Federation, and an adviser to the Head of the Chuvash Republic on the development of production capacity in the region, acquisition of new investment projects and diversification of the Republic’s economy. In 2015, S. Kolesnikov was awarded by the President of the Russian Federation for his social activities9.

The Association for Polish-Ukrainian Cooperation “POROZUMIENIE”, based at Florentynów 7C, 95-045 Parzęczew, also applied, by letter dated 8 December 2022, for the above-mentioned business entity to be entered on the list referred to in Article 2(1) of the Act, stating that:

(…) All these companies (currently: BOERNER SERVICE Sp. z o.o., BOERNER INSULATION Sp. z o.o., BOERNER SYNTHETICS MEMBRANES Sp. z o.o. – editor’s note) are part of a Russian concern owned by Russian oligarchs Igor Rybakov and Sergey Kolesnikov. (…) The above-mentioned companies transfer money earned in Poland through subsidiaries in Bulgaria10 to the budget of the Russian Federation (…) According to Forbes, Igor Rybakov (https://rvbakovieor.com/en) is among the 200 wealthiest entrepreneurs in Russia, ranking 96th with a fortune of USD 1.1 billion. According to Forbes, Sergey Kolesnikov (https://kolesnikovsereev.ru/en) is among the 200 wealthiest entrepreneurs in Russia, ranking 69th with a fortune of USD 2 billion.

It should be noted that, pursuant to Article 4(1) of the Act, proceedings concerning entry on and removal from the list, in matters not regulated by the Act, are governed by the provisions of (…) Article 107 § 1, Article 112, Article 113 § 1 (…) of the Act of 14 June 1960 – Code of Administrative Procedure (…). Pursuant to Article 107 § 1 point 6 of the CAP, a decision must include, in particular, a statement of the factual and legal reasons. It should be emphasised that Article 4(1) of the Act does not refer to Article 107 § 3 of the CAP, according to which the statement of factual reasons for a decision should include, in particular, an indication of the facts that the authority considered proven, the evidence on which it relied and the reasons why it refused to accept the credibility and probative value of other evidence, while the statement of legal reasons should explain the legal basis of the decision, citing the relevant provisions of law. At the same time, pursuant to Article 3(9) of the Act, the minister responsible for internal affairs may limit the scope of the statement of reasons (…) for reasons of state security or public order. In the authority’s view, this situation clearly applies in matters of this kind, particularly in the case of classified information.

It should additionally be noted that the legislator requires the application for the relevant decision itself to contain reasons; the application is submitted by an authority or entity competent and specialised in matters of state security and public order. Pursuant to Article 3(3) of the Act, the minister responsible for internal affairs issues a decision on entry on the list ex officio or upon a reasoned application identifying the person or entity in respect of whom the decision is to be issued and, in the case of a decision on entry on the list, also proposing the measures to be applied to that person or entity referred to in Article 1.

Having conducted a comprehensive analysis of the case, including the application received from the entity identified in the introduction to the decision, the Minister of the Interior and Administration fully endorses the findings and arguments presented in the above-mentioned application, adopting them as his own and considering their complete reproduction unnecessary.

In view of the evidence gathered in the case, it should be indicated that, pursuant to Article 3(1) of the Act, the minister responsible for internal affairs issues decisions on entry on and removal from the list.
In turn, pursuant to Article 3(2) of the Act, a decision on entry on the list is issued with respect to persons and entities disposing of funds, financial assets and economic resources within the meaning of Council Regulation (EC) No 765/2006 of 18 May 2006 concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in Russia’s aggression against Ukraine (OJ EU L 134 of 20 May 2006, p. 1, as amended), hereinafter referred to as “Regulation 765/2006”, or Regulation 269/2014, directly or indirectly supporting:

  1. the aggression of the Russian Federation against Ukraine launched on 24 February 2022, or
  2. serious violations of human rights or repression of civil society and the democratic opposition, or whose activities constitute another serious threat to democracy or the rule of law in the Russian Federation or Belarus
    – or directly linked to such persons or entities, in particular due to personal, organisational, economic or financial ties, or in respect of whom there is a likelihood that the funds, financial assets or economic resources at their disposal will be used for this purpose.

Pursuant to Article 3(3) of the Act, the minister responsible for internal affairs issues a decision on entry on the list ex officio or upon a reasoned application from the competent authorities or entities indicated therein, such as the applicant in this case. At the same time, pursuant to Article 3(4) of the Act, the proposed measures referred to in Article 1 are determined taking into account, in particular, the nature and scope of the activities conducted by the person or entity, the entity’s capital structure and national security considerations.

Pursuant to Article 3(6) of the Act, a decision on entry on the list contains the date of issue, identification of the person or entity to which the measures referred to in Article 1 apply, together with a determination of which of those measures apply to them, the statement of reasons, identification of the issuing authority, the legal basis of the decision, the signature of the issuing person and information on the right to lodge a complaint with an administrative court.

Under Article 3(7) of the Act, when issuing a decision on entry on the list, the minister responsible for internal affairs may specify the scope of funds, financial assets or economic resources within the meaning of Regulation 269/2014 or Regulation 765/2006 covered by the measures referred to in Article 1(1) or (2) of the Act.

Having regard to the legal situation cited above, the Minister of the Interior and Administration – after comprehensively considering the circumstances presented in the application of the Head of the Internal Security Agency concerning the entity identified in the operative part of this decision and analysing all documents gathered in the case – found that the conditions laid down in Article 3(2) of the Act for applying the measures listed in the operative part of the decision to that entity were met. As the facts described in the application indicate, the entity named in the operative part of this decision has funds and economic resources within the meaning of Regulation 269/2014 and is directly or indirectly linked to persons or entities, in particular through economic ties, in respect of whom there is a likelihood that the funds or economic resources at their disposal will be used to support the aggression of the Russian Federation against Ukraine launched on 24 February 2022. Moreover, there is a likelihood that the funds or economic resources at the disposal of the entity named in the operative part of this decision will be used for that purpose.

The Minister of the Interior and Administration determined the scope of the measures applied in the operative part in accordance with Article 1 of the Act, taking into account the definitions contained respectively in Article 1(d) and (g) of Regulation 269/2014. Pursuant to the aforementioned Article 1 of the Act, for the purpose of counteracting support for the aggression of the Russian Federation against Ukraine launched on 24 February 2022, the following measures apply to persons and entities entered on the list referred to in Article 2 (i.e. the list maintained by the minister responsible for internal affairs):

  1. the relevant measures specified in Article 2(1)–(3) of Council Regulation (EC) No 765/2006 of 18 May 2006 concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in Russia’s aggression against Ukraine (OJ EU L 134 of 20 May 2006, p. 1, as amended), (…) under the rules laid down in that regulation, excluding Article 1fb, Article 1fc and Article 7;
  2. the relevant measures specified in Article 2 and Article 9 of Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ EU L 78 of 17 March 2014, p. 6, as amended), (…), under the rules laid down in that regulation, excluding Article 8, Article 12 and Article 16;
  3. exclusion from public procurement proceedings or a competition conducted pursuant to the Act of 11 September 2019 – Public Procurement Law (…);
  4. entry on the list of foreigners whose stay in the territory of the Republic of Poland is undesirable, referred to in Article 434 of the Act of 12 December 2013 on Foreigners (…).

In deciding to apply the measures indicated in the operative part of this decision, the Minister of the Interior and Administration also took into account Article 3(4) of the Act, according to which the nature and scope of the activities conducted by the addressee of the decision, its capital structure and national security considerations are taken into account in particular.

In his application, the Head of the Internal Security Agency drew attention to the need to release from the freeze certain economic resources of the entity identified in the operative part of this decision, namely goods that the company is obliged to supply to domestic contractors under concluded agreements, provided that the agreement was concluded before the company became subject to sanctions and payment for the goods in question has already been made. However, in the opinion of the Minister of the Interior and Administration, the release may be carried out only after this decision has been issued by the Head of the National Revenue Administration, who is competent in this respect under Article 5 of the Act, in accordance with the rules arising from Regulation 269/2014.

Pursuant to Article 3(10) of the Act, this decision is subject to immediate enforcement.

Pursuant to Article 4(2) of the Act, the party is notified of the decision by making it available in the Public Information Bulletin on the website of the Minister of the Interior and Administration.

In view of the above, the Minister of the Interior and Administration ruled as set out in the operative part.

Information on appeal

Pursuant to Article 3(10) of the Act, no application for reconsideration of the case may be submitted against this decision.

Pursuant to Article 16 § 2 of the CAP and Article 3 § 2 point 1, Article 53 § 1 and Article 54 § 1 of the Act of 30 August 2002 – Law on Proceedings before Administrative Courts (Journal of Laws of 2023, item 259), in conjunction with Article 3(6) of the Act, this decision may be challenged before the Voivodeship Administrative Court in Warsaw. The complaint must be lodged within 30 days from the date of service (here: making available in the Public Information Bulletin on the website of the Minister of the Interior and Administration) of this decision to the party, through the Minister of the Interior and Administration (address: ul. St. Batorego 5, 02–591 Warszawa).

Pursuant to Article 230 § 1 of the Law on Proceedings before Administrative Courts, a proportional or fixed court fee is charged for pleadings initiating proceedings before an administrative court at a given instance. Pursuant to Article 231 of the Law on Proceedings before Administrative Courts, a fixed fee is charged for the complaint in this case.

Pursuant to § 2(1) point 2 of the Regulation of the Council of Ministers of 16 December 2003 on the amount and detailed rules for collecting court fees in proceedings before administrative courts (Journal of Laws of 2021, item 535), the fixed fee, irrespective of the subject matter of the challenged act or action, is PLN 200 in cases involving complaints against acts or actions in the field of public administration concerning rights or obligations arising from legal provisions.

Under the rules set out in Articles 243–262 of the Law on Proceedings before Administrative Courts, the complainant may apply for legal aid or exemption from costs.

Mariusz Kamiński
Minister of the Interior and Administration
/signed with a qualified electronic signature/