Council of theEuropean Union
Brussels, 4 May 2018
(OR. en)5664/18
LIMITECORLX 39
CFSP/PESC 68
FIN 69RELEX 376
CONUN 139
COARM 156
'I/A' ITEM NOTE
From:
To:

General Secretariat of the Council
Permanent Representatives Committee/Council

Subject:

Sanctions Guidelines – update1.

On 8 December 2003, the Council approved the Sanctions Guidelines1. The latest reviewed
and updated text of the Guidelines was adopted by the Council on 18 December 20172.

2.

On 24 April 2018, RELEX (Sanctions Formation) agreed on further elements concerning thedefinition of "financing and financial assistance" which is included in paragraph 59a of thedraft consolidated Sanctions Guidelines set out in the Annex to this note.

3.

In view of the above, the Permanent Representatives Committee is invited to:–confirm the agreement on the draft consolidated Sanctions Guidelines, as set out inAnnex to this note;–

recommend that the draft consolidated Sanctions Guidelines be forwarded to theCouncil for adoption.

1
2

Guidelines on implementation and evaluation of restrictive measures (sanctions) in theframework of the EU Common Foreign and Security Policy (doc. 15579/03).
Doc. 15598/17.

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LIMITEENGUIDELINES ON IMPLEMENTATION AND EVALUATION OF
RESTRICTIVE MEASURES (SANCTIONS) IN THE FRAMEWORK OF
THE EU COMMON FOREIGN AND SECURITY POLICYI.

Introduction .............................................................................................................................. 4II.

Principles ................................................................................................................................... 5
A.

Objectives .......................................................................................................................... 5

B.

Legal issues ....................................................................................................................... 6

C.

Targeted measures ............................................................................................................. 8

D.

Lists of targeted persons and entities ................................................................................ 9

E.

Exemptions...................................................................................................................... 12

F.

Exchange of information and reporting requirements .................................................... 13G.

Expiration or review of restrictive measures ................................................................. 14

H.

Implementation of UN Security Council Resolutions .................................................... 16

I.

Competences ................................................................................................................... 18

J.

Jurisdiction ...................................................................................................................... 19

K.

Compliance ..................................................................................................................... 20

L.

Outreach and Communication......................................................................................... 24

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III. Standard wording for legal instruments .............................................................................. 25
A.

Definitions ....................................................................................................................... 25

B.

Arms embargoes.............................................................................................................. 27

C.

Restrictions on equipment used for internal repression and other specific imports
or exports ......................................................................................................................... 31

IV.

D.

Restrictions on admission (visa or travel ban) ................................................................ 33

E.

Financial restrictions ....................................................................................................... 35

F.

Non-liability clause ......................................................................................................... 40

G.

No claims clause ............................................................................................................. 41

H.

Jurisdiction ...................................................................................................................... 42

I.

Infringements .................................................................................................................. 42J.

Expiry/Review................................................................................................................. 43

Monitoring and evaluation of restrictive measures ............................................................. 44

ANNEX I:

Recommendations for working methods for EU autonomous sanctions ............ 46

ANNEX II:

List of equipment which might be used for internal repression .......................... 57

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I.

Introduction

1.

The European Union's extensive experience in designing, implementing, enforcing andmonitoring restrictive measures (sanctions) in the framework of the CFSP3 has shown that itis desirable to standardise implementation and to strengthen methods of implementation.
These guidelines4 address a number of general issues and present standard wording andcommon definitions that may be used in the legal instruments implementing restrictive
measures. However, they do not address the political process leading to the decision to
impose or repeal such restrictive measures5.
The main steps leading to the adoption of European Union autonomous restrictive measures,
as well as respective roles of different actors in this process are set out in the
Recommendations for working methods for EU autonomous sanctions in Annex I to thisdocument6.
Moreover, the EU has developed Best Practices on Effective Implementation of Financial
Restrictive Measures7, where recommendations are given for an effective implementation of
restrictive measures in accordance with applicable legislation.

3
4

5
6
7

See EEAS website, list of restrictive measures in force
http://eeas.europa.eu/cfsp/sanctions/index_en.htm
First version of the guidelines was adopted by the Council on 8 December 2003 (doc.
15579/03); updated versions were agreed on 1 December 2005 (doc. 15114/05) and on
22 December 2009 (doc. 17464/09).
As regards policy aspects, it is recalled that the Council on 14 July 2004 adopted basic
principles on the use of restrictive measures (sanctions) (doc. 10198/1/04).
Doc. 18920/12.
Doc. 8666/1/2008 REV 1.

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LIMITEENII. Principles

A.

Objectives

2.

Within the framework of the Common Foreign and Security Policy, the Council may decide
to impose restrictive measures against third countries, entities or individuals. These measures
must be consistent with CFSP objectives, as set out in Article 21 of the Treaty on European
Union (TEU).

3.

Certain restrictive measures are imposed by the Council in implementation of Resolutions
adopted by the UN Security Council under Chapter VII of the UN Charter. In the case ofmeasures implementing UN SC Resolutions, the EU legal instruments will need to adhere to
those Resolutions. However, it is understood that the EU may decide to apply measures thatare more restrictive. When the adoption of restrictive measures in the framework of UN is notpossible, the European Union should encourage broader support of the international
community for its autonomous measures.

4.

In general terms, restrictive measures are imposed by the EU to bring about a change in policyor activity by the target country, part of country, government, entities or individuals, in linewith the objectives set out in the CFSP Council Decision. Accordingly, the EU will adapt the
restrictive measures as a result of developments with regard to the objectives of the CFSP
Council Decision. Where possible and consistent with the European Union's overall strategy
towards the third country concerned, the legal instruments imposing restrictive measures may
refer to incentives to encourage the required change in policy or activity. It will be important
to ensure that such incentives do not reward non-compliance. The EU and its Member Statesshould actively and systematically communicate on EU sanctions, including with the targetedcountry and its population.

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The objective of each measure should be clearly stated and consistent with the Union's overall
strategy in the area concerned. Both the overall strategy and the specific objective should berecalled in the introductory paragraphs of the Council legal instrument through which themeasure is imposed. The restrictive measures do not have an economic motivation. The EUshould seek to ensure that objectives are consistent with wider EU/UN and regional policies
and measures.

6.

The legal instruments will be subject to regular review in order to assess the efficiency of the
adopted restrictive measures with regard to the objectives stated. The review will be
conducted by the relevant Council working parties and committees, on the basis of EU Heads
of Mission reports where relevant.

B.

Legal issues

7.

As indicated above, the Council imposes restrictive measures within the framework of the
CFSP. The Council first adopts a CFSP Decision under Article 29 of the TEU. The measuresforeseen in that Council Decision are either implemented at EU or at national level. Measures
such as arms embargoes or restrictions on admission are implemented directly by the Member
States, which are legally bound to act in conformity with CFSP Council Decisions. Other
measures interrupting or reducing, in part or completely, economic relations with a third
country, including measures freezing funds and economic resources, are implemented bymeans of a Regulation, adopted by the Council, acting by qualified majority, on a joint
proposal from the High Representative of the Union for Foreign Affairs and Security Policy
and the Commission, under Article 215 of Treaty on the Functioning of the European Union.
The European Parliament has to be informed. Such Regulations are binding and directly
applicable throughout the EU, and they are subject to judicial review by the Court of Justiceand the General Court in Luxembourg. CFSP Council Decisions providing for restrictive
measures against natural and legal persons are also subject to judicial review.

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8.

When imposing restrictive measures, the legal context of the measures should be set out. In
addition to relevant provisions of the Treaty on European Union and the Treaty on the
Functioning of the European Union, this may include references to any relevant UN Security
Council resolution, or other applicable provisions of international law. For reasons of clarity
and transparency, efforts should be made to present these references as fully as possible.

9.

The introduction and implementation of restrictive measures must always be in accordancewith international law. They must respect human rights and fundamental freedoms, inparticular due process and the right to an effective remedy. The measures imposed must
always be proportionate to their objective.

10.

As indicated above, the restrictive measures should, in particular, be drafted in light of theobligation under Article 6(3) TEU for the EU to respect fundamental rights, as guaranteed by
the European Convention on Human Rights and as they result from the constitutional
traditions common to the Member States, as general principles of Union law.

11.

The restrictive measures should also respect the international obligations of the Union and its
Member States, in particular the WTO Agreements. The General Agreement on Tariffs andTrade (GATT) and on Trade in Services (GATS) apply when restrictive measures affect tradein goods or services with third countries. Article XXI of GATT allows for import and export
restrictions which are either applicable to arms and military equipment, or imposed inpursuance of obligations under the United Nations Charter for the maintenance of international
peace and security. Article XIV bis of GATS provides for a similar exception. Measures
restricting trade which do not fall under these categories have to meet the conditions laid downin Article XX of GATT and Article XIV of GATS, respectively, and, in some cases, could beincompatible with WTO rules.

12.

If EU measures are in conflict with the international obligations of the Union or its Member
States, a common approach for dealing with such conflicts may have to be developed.

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C.

Targeted measures

13.

The measures taken should target those identified as responsible for the policies or actions
that have prompted the EU decision to impose restrictive measures and those benefiting fromand supporting such policies and actions. Such targeted measures are more effective thanindiscriminate measures and minimise adverse consequences for those not responsible forsuch policies and actions.

14.

The measures used in a specific situation will vary depending on the objectives of therestrictive measures and their likely effectiveness in achieving these objectives under theparticular circumstances, reflecting the EU’s targeted and differentiated approach. They
include, inter alia, freezing of funds and economic resources, restrictions on admission, arms
embargoes, embargoes on equipment that might be used for internal repression, other export
restrictions, import restrictions, and flight bans. A ban on the provision of financial services,
including in connection with bans on the export of certain products, has also been used as wellas investment bans. In this context, sectoral bans or measures to prevent the misuse of
equipment, technology or software for monitoring and interception of the Internet or of otherforms of communication have also been used.

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D.

Lists of targeted persons and entities

15.

The listing of targeted persons and entities must respect fundamental rights, as stipulated by
the Treaty on European Union. In particular, due process rights of the persons and entities tobe listed must be guaranteed in full conformity with the jurisprudence of the Court of Justiceof the European Union, inter alia with regard to the rights of defence and the principle ofeffective judicial protection.

16.

The decision to subject a person or entity to targeted restrictive measures requires clear
criteria, tailored to each specific case, for determining which persons and entities may belisted, which should also be applied for the purpose of removal from the list. These clear
criteria will be set out in the CFSP legal instrument. This applies in particular with regard tomeasures freezing funds and economic resources, both where persons are listed in theframework of measures against one or more third states, as well as where measures target
individuals and entities in their own right.

17.

Proposals for listing must be accompanied by accurate, up-to-date and defendable statementsof reasons. A series of recommendations has been included in the Working Methods for EU
autonomous sanctions as out in Annex I to the present document, which also covers issues
concerning notification and information about the right to make views known as well aspractical issues for listings and de-listings.

18.

In cases where CFSP Council Decisions provide for restrictive measures targeting not only
those responsible for certain policies or actions, but also members of their families, theirchildren under 18 should not, in principle, be targeted.

19.

Persons, entities or organisations targeted by financial sanctions should be clearly identified in
the Annex in order to make sure that the scope of the sanctions is defined precisely.

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20.

Identifying information is crucial to ensure that targeted restrictive measures do not impact on
non-targeted persons and entities, in particular to assist the private sector to implement suchmeasures. It cannot be excluded that in some cases the funds of a person will be frozen oradmission will be refused, where this was not intended, due to identifiers that match withthose of a designated persons. Member States and the Commission should have procedures inplace that ensure that their findings on claims concerning alleged mistaken identity are
consistent. The EU Best Practices on Effective Implementation of Financial Restrictive
Measures8 give some recommendations to that end.

21.

In order to improve the effectiveness of restrictive measures, as many specific identifiers as
possible should be available at the moment of identification and published at the moment of
adoption of the restrictive measures. Identifying information for individuals and entities
should be standardised as far as possible. With regard to natural persons listed, theinformation should aim to include in particular names (where available also in the original
language) with appropriate transliteration as provided for in travel documents or transliterated
according to the International Civil Aviation Organisation (ICAO) standard), aliases, sex, dateand place of birth, nationality and current address, identification or passport number. With
regard to groups, legal persons or entities the information should aim to include in particular
the full name, principal place of business, place of registration of office, date and number ofregistration. A model template is attached to these Guidelines.

21a. When economic operators or others screen with regards to the asset freeze measures,information regarding aliases included in the identifying information could be taken into
account as follows:(i)

Strong aliases: high-quality aliases deemed as having a high significance for

identification. The economic operators and others are expected to screen under the strong
aliases.

8

8666/1/08 REV 1.

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(ii)Weak aliases: low-quality aliases deemed as having a low significance for

identification. These weak aliases are used particularly to help economic operators and others
to confirm the identification of the targeted person.
(iii) When no indication is provided, the alias provided for should be considered as a strong
alias.
A weak alias is deemed as having a low significance for identification that may generate alarge volume of false hits when it is run through a computer-based screening system. Weakaliases are used particularly to help economic operators or others to confirm the identificationof the targeted person.
If a distinction between a weak and a strong alias is made at the level of the UN, it should be
reproduced in the EU legal texts. For EU autonomous listings, the qualification of a strong or
weak alias should be subject to a case by case assessment.
22.

The EU should strive in all cases to ensure that the identifying information provided at thetime of the inclusion of a person on a list should be sufficiently precise to allow for an
unambiguous identification of the targeted person. After designation of a person or entity, aregular review of identifiers should take place in order to specify and extend them, involving
all those who can contribute to this effort, in particular the EU Heads of Mission in the third
country concerned, Member States' competent authorities and agencies and financial
institutions. Updates of the lists with additional identifying information will be adopted asprovided for in the basic act.

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23.

With regard to the measures imposing travel restrictions, the Member State holding thePresidency of the Council of the EU at the time of the adoption of the instrument containing
the lists will be responsible for entering the data in the SIS. If that Member State is unable toenter the data in the SIS because it does not have access to the SIS or does not participate inthis part of the Schengen acquis, it will be for the Member State holding the Presidency in thefollowing half-year to enter the data. The Member State which entered the alert will also be
responsible for the alert. It will in particular be responsible for any necessary updates,
corrections and/or deletions, at any time9.

24.

In order to assist the private sector to implement financial restrictions the Commission
launched in June 2004 a website which provides, inter alia, a consolidated list of persons andentities subject to financial sanctions and an overview of the restrictive measures in force10.

E.

Exemptions

25.

It is important that the legal instruments on financial restrictions, restrictions on admission
and other restrictive measures make provision for appropriate exemptions to take account ofin particular basic needs of targeted persons, legal fees, extraordinary expenses or, whereapplicable, humanitarian needs or international obligations, including as host nations ofinternational organisations or the OSCE, with regard to the various restrictive measures taken.

26.

The competent authorities should grant exemptions on a case by case basis, which will allow
them to assess all interests concerned and to impose conditions to ensure that the exemptions
do not frustrate or circumvent the objective of the restrictive measure. The exemptions should
be granted on the basis of the relevant legislative instruments. If there are grounds to grant an
exemption from one restrictive measure (e.g. financial restrictions) this does not by default
justify granting an exemption from another measure (e.g. restrictions on admission) which
affects the person or entity concerned (cf. section III: A, D and E).

910

See document 8665/08.
http://eeas.europa.eu/cfsp/sanctions/index_en.htm

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27.

If an exemption request for the release or making available of funds and economic resources
concerns an activity prohibited under the legal instrument concerned (and not covered by aprior contracts clause or a similar exemption provision), the competent authority should refuse
the exemption. This also applies if the relevant exemption provision does not explicitly
provide for a refusal in such situations.

28.

In cases where, by way of exception, funds or economic resources may be released so as toenable a targeted person, entity or body to fulfil an obligation arising from a prior contract(see standard wording in paragraph 86), such an exemption covers, in cases where an asset
freeze applies to the funds and economic resources of a credit or financial institution, therelease of funds from accounts of non-targeted persons or entities held in the targeted credit or
financial institution provided the account was opened before the date of designation of thetargeted entity. The competent authorities should use their discretion in such a way as toimpose appropriate conditions to ensure that the accounts will not continue to be used on a“business-as-usual” basis.

F.

Exchange of information and reporting requirements

29.

The competent authorities of the Member States and the Commission each have specific tasks
as regards the implementation and application of the restrictive measures. In order to ensurethat such measures are applied in a coherent manner, including exemptions granted, exchangeof relevant information between all concerned, in accordance with the provisions of each
CFSP Decision and Regulation, is essential. The EU legal instruments should make provision
for such exchange. Member States are invited to communicate to the EEAS and to theCommission data collected in applying these exemptions in order to improve the quality of
the identifiers referred to above.

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30.

When Regulations implementing restrictive measures make provision that specific tasks are to
be carried out by competent authorities of Member States, the authorities designated ascompetent by each Member State are either listed in an Annex to the Regulation, or indicatedin an indirect way by listing in an Annex to the Regulation the web-pages of each Member
State where information about its relevant competent authorities can be found.

G.

Expiration or review of restrictive measures11

31.

Taking the specific objective of each measure and all other relevant considerations into
account, the Council should keep the situation under review and schedule a specific review
whenever the political context has changed.

32.

Regular assessments of sanctions regimes by the relevant preparatory bodies of the Council,
assisted, where appropriate, by the EEAS, the Commission and HoMs, should permit theadjustment of the measures, as needed, in function of the developments with regard to thestated objectives and the effectiveness of the measures in that respect.

33.

Where it is considered appropriate, specific criteria that have to be met for repeal of therestrictive measures can be set out in the legal instrument, but normally proper definition of
the specific objective of the measure will be sufficient.

34.

When the criteria or specific objectives of the measure have not been met the restrictive
measures should continue, except in cases where the Council decides otherwise. The CFSP
legal instrument should therefore either have an expiration date or a review clause, as decided
by the Council, so as to ensure that the need for renewal of restrictive measures is discussed
within an appropriate period of time. The expiration or review date could be decided taking
into account relevant facts and considerations (e.g. dates of future elections or peace
negotiations which might bring about a change in the political context).

11

The paragraphs in this section primarily deal with EU autonomous sanctions. For the
implementation of UN decided sanctions, see under H. below, in particular paragraph 42.

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35.

If the CFSP legal instrument sets out an expiration date for restrictive measures the Council
should develop an understanding about their renewal. To be effective restrictive measures
should be lifted when their objectives have been met. The time limit therefore would be an
occasion to revisit the restrictive measures regime and to assess whether the objectives havebeen met.

36.

In cases where the CFSP legal instrument contains an expiration date, an expiration date in
the Regulation implementing the CFSP legal instrument should normally be avoided:–

since the Regulations implement the CFSP act, they have to be repealed, if the CFSP
legal instrument ceases to be applicable12. Regulations should be repealed at the sametime as or immediately after the CFSP legal act ceases to apply. If, in exceptional cases,
the Regulations have to be repealed with retroactive effect, it is desirable that this time
period is kept as short as possible.

–

if a subsequent CFSP legal instrument renews the measures, amending the expiration
date of the Regulation or adopting a new one containing the same legal provisions
constitutes a mere administrative burden which should be avoided. Especially where lastminute decisions on renewal are made, there may be a period during which themeasures are not applicable pending amendment or adoption of a Regulation.

37.

It is, therefore, preferable to have the Regulation continue in force, until it is repealed. For thesake of clarity and transparency, the adoption of a consolidated text13 should be considered incases where CFSP Decisions or Regulations have been amended at least three times.14

12
13
14

See Article 215 of the Treaty on the Functioning of the European Union.
The adoption of a consolidated text would have the effect of recommencing the deadline forbringing legal challenges to the act.
The Publications Office regularly publishes consolidated versions of basic instruments of
EU legislation in the Official Journal, including acts concerning restrictive measures, which
can be accessed through EUR-Lex. These are intended as a documentation tool and carry nolegal value. It should be noticed that the recitals of the amending acts are normally notincluded in the consolidations.

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H.

Implementation of UN Security Council Resolutions

New measures
38.

The UN Charter grants the Security Council powers to decide restrictive measures binding for
all UN members15 in order to maintain or restore international peace and security. It is
important that the EU implement such UN restrictive measures as quickly as possible. Speedis particularly important in the case of asset freezes where funds can move quickly. In suchcases, each Member State could consider the possibility of interim national measures withregard to financial measures. The EU should aim to have the necessary implementing
legislation in place without delay and within 30 days of the adoption of the UNSC Resolution
at the latest. In cases where lists of designated persons and entities need to be updated in orderto implement new UN designations, the necessary amendments to the EU legal acts should be
adopted with the minimum possible delay.

39.

EU members of the UN Security Council will seek to ensure that, to the greatest extent
possible, and without prejudice to their responsibilities under the UN Charter, EU concerns
and implementation needs are taken into consideration when negotiating the UNSCR inquestion, in accordance with Article 34 TEU.

40.

The current legislative procedure requires the adoption of a CFSP legal instrument and an
implementing Council Regulation based on the Treaty on the Functioning of the European
Union, based on a joint proposal from the High Representative of the Union for Foreign
Affairs and Security Policy and the Commission.

15

See Article 25 and Chapter VII of the UN Charter.

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41.

With a view to presentation of draft CFSP legal instruments and of joint High Representativeand Commission proposals for Council Regulations immediately after adoption of UN
Security Council Resolutions, prompt exchange of information regarding draft Security
Council Resolutions is important. This approach should enable the Council to adopt the CFSP
legal instrument and the Regulation without undue delay, preferably at the same time or withminimum time delay between the two instruments.

42.

Standard wording for legislative texts will be conducive to more rapid implementation of UN
restrictive measures. When the EU implements UN restrictive measures the use of standard
wording and common definitions must be adapted to the UNSC Resolution.

43.

In order to provide EU missions in New York with regular information on the issues
encountered in the implementation of UN restrictive measures in the EU, feedback notes will
be brought to the attention of EU missions meeting in the framework of the Article 34
coordination in New York. A regular dialogue between EU missions in Brussels and New
York and EU and UN Institutions should be encouraged, including through joint seminars, inorder to enhance understanding of the issues involved. The circulation to EU missions inBrussels of reports from the sanctions meetings held in New York within the framework of
the Article 34 coordination are important in this regard.

44.

In view of the binding nature of UN Security Council Resolutions, the effective
implementation of UN measures requires immediate legislative action. A specific situation
exists when the Security Council decides on measures which expire on a particular date.
In such a situation, the use of an expiry date in the EU legal acts is not appropriate since the
Security Council will normally renew the measure just before the expiry date. However, an
indication should be given that the measures will be amended or repealed, as appropriate, in
accordance with determinations made by the Security Council.

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Expiration or repeal of measures
45.

Where the EU applies restrictive measures in implementation of Security Council Resolutions
only, it is not appropriate for the implementing legal instruments to remain in place when the
Security Council has decided the measures should be lifted, and therefore the restrictive
measures should be repealed within the minimum possible delay.

Exemptions
46.

Chapter VII UNSC Resolutions are mandatory under international law. In the case of EU
implementation of restrictive measures decided by the Security Council through a resolution,
it will therefore only be possible to include exemptions if they are in line with the Resolution.
In this respect, paragraph 38 is relevant, including with regard to humanitarian exemptions forthe purpose of satisfying basic needs of targeted persons.

Reporting47.

In cases where UN Security Council Resolutions provide for a reporting obligation, acommon EU report to the UN could also be submitted on the measures taken at EU level. In
such cases, national and common reporting would be complementary.

I.

Competences

48.

The purpose of the CFSP legal instrument is to state which restrictive measures are
considered necessary to meet its objectives and provide the basis for an action by theEuropean Union to interrupt or to reduce economic or financial relations with the third
country in question.
The Union can adopt legislative implementation measures through a Regulation based on
Article 215 of the Treaty on the Functioning of the European Union. Where the Union has nocompetence it is up to each of the Member States to adopt the necessary legislation or
implementing measures.

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49.

Where restrictive measures are being considered, a case by case assessment needs to be madeof the European Union competence, taking into account the attribution of powers to the Union
provided for in the Treaties. The practice is that the Council indicates in the CFSP instrumentthat "Further action by the Union is needed to implement certain measures" to enable the High
Representative of the Union for Foreign Affairs and Security Policy and the Commission to
propose a Regulation implementing the measures falling within the remit of the Union. Where
precision is needed to ensure that all measures are implemented in time, the CFSP instrument
should indicate expressly how each measure or part of measure will be implemented.

50.

Where the European Union has the necessary competences to adopt a Regulation
implementing the restrictive measures, it provides that Member States must lay down rules on
penalties applicable to infringements of the provisions of the Regulation and take all measuresnecessary to ensure that they are implemented.

J.

Jurisdiction

51.

EU restrictive measures should only apply in situations where links exist with the EU. Thosesituations, as set out in paragraph 88 of this document, cover the territory of the European
Union, aircrafts or vessels of Member States, nationals of Member States, companies andother entities incorporated or constituted under Member States’ law or any business done inwhole or in part within the European Union.

52.

The EU will refrain from adopting legislative instruments having extra-territorial applicationin breach of international law. The EU has condemned the extra-territorial application of third
country’s legislation imposing restrictive measures which purports to regulate the activities ofnatural and legal persons under the jurisdiction of the Member States of the European Union,
as being in violation of international law16.

16

Regulation (EC) No 2271/96 and Joint Action 96/668/CFSP of 22 November 1996
protecting against the effects of the extra-territorial application of legislation adopted by athird country, and actions based thereon or resulting therefrom (OJ L 309, 29.11.1996,
pp. 1 and 7).

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K.

Compliance

53.

Member States should take appropriate measures to ensure that restrictive measures arecomplied with.

54.

An entity incorporated in an EU Member State may not, inter alia, use a company that it
controls as a tool to circumvent a prohibition, including where that company is notincorporated in the EU, nor may this entity give instructions to such effect.

55.

It is considered appropriate for an entity incorporated in the EU to inform, where relevant,companies that it controls of new EU restrictive measures in order for these measures to be
fully taken into account when defining business policies.

I.

Ownership and control

Ownership
55a. The criterion to be taken into account when assessing whether a legal person or entity isowned by another person or entity is the possession of more than 50% of the proprietary
rights of an entity or having majority interest in it17. If this criterion is satisfied, it isconsidered that the legal person or entity is owned by another person or entity.
Control
55b. The criteria to be taken into account when assessing whether a legal person or entity iscontrolled by another person or entity, alone or pursuant to an agreement with anothershareholder or other third party, could include, inter alia18:

1718

Criterion as in definition provided for in Regulation 2580/2001.
Criteria as in definition provided for in Regulation 2580/2001.

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LIMITEEN(a)having the right or exercising the power to appoint or remove a majority of the membersof the administrative, management or supervisory body of such legal person or entity;(b)having appointed solely as a result of the exercise of one's voting rights a majority ofthe members of the administrative, management or supervisory bodies of a legal person orentity who have held office during the present and previous financial year;(c)controlling alone, pursuant to an agreement with other shareholders in or members of alegal person or entity, a majority of shareholders' or members' voting rights in that legal
person or entity;(d)having the right to exercise a dominant influence over a legal person or entity, pursuant

to an agreement entered into with that legal person or entity, or to a provision in its
Memorandum or Articles of Association, where the law governing that legal person or entity
permits its being subject to such agreement or provision;(e)having the power to exercise the right to exercise a dominant influence referred to inpoint (d), without being the holder of that right19;(f)having the right to use all or part of the assets of a legal person or entity;(g) managing the business of a legal person or entity on a unified basis, while publishingconsolidated accounts;(h) sharing jointly and severally the financial liabilities of a legal person or entity, or
guaranteeing them.
If any of these criteria are satisfied, it is considered that the legal person or entity is controlled
by another person or entity, unless the contrary can be established on a case by case basis.
55c. The fulfilment of the above criteria of ownership or control may be refuted on a case by casebasis.

19

Including, for example, by means of a front company.

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II.

Making indirectly available funds or economic resources to designated persons
and entities

55d. If the ownership or control is established in accordance with the above criteria, the making
available of funds or economic resources to non-listed legal persons or entities which are
owned or controlled by a listed person or entity will in principle be considered as making
them indirectly available to the latter, unless it can be reasonably determined, on a case-bycase basis using a risk-based approach, taking into account all of the relevant circumstances,including the criteria below, that the funds or economic resources concerned will not be usedby or be for the benefit of that listed person or entity.

The criteria to be taken into account include, inter alia:(a)the date and nature of the contractual links between the entities concerned (for instancesales, purchase, or distribution contracts);(b) the relevance of the sector of activity of the non-listed entity for the listed entity;(c)the characteristics of the funds or economic resources made available, including theirpotential practical use by, and ease of transfer to, the listed entity.
(d)
An economic resource will not be considered to have been for the benefit of a listed person orentity merely because it is used by a non-listed person or entity to generate profits whichmight be in part distributed to a listed shareholder.
55e. It is to be noted that the indirect making available of funds or economic resources to listed
persons or entities may also include the making available of these items to persons or entities
which are not owned or controlled by listed entities.

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III. Non-liability
55f. The above elements are without prejudice to clauses on non-liability in the relevant legal acts.
IV.

Information sharing

55g. As provided in the relevant EU Regulations20 and in order to facilitate the carrying out of theabove assessments Member States have an obligation under EU law to share relevant
information at their disposal. Where a competent authority of a Member State has informationthat a non-listed legal person or entity is owned or controlled by a listed person or entity or
any information which might affect the effective implementation of the prohibition on theindirect making available of funds or economic resources, the Member State concerned
should, subject to national law, share relevant information with the other Member States andthe Commission.
55h. Without prejudice to the applicable rules concerning reporting, confidentiality andprofessional secrecy, an economic operator who is aware that a non-listed legal person orentity is owned or controlled by a listed person or entity should inform the competentauthority of the relevant Member State and the Commission either directly or through theMember State.
V.

Proposals for listing

55i. Where appropriate the Member State concerned should also propose to list the legal person orentity that is established to be owned or controlled by an already listed person or entity.

20

For example, Articles 40 and 44 of Regulation (EU) n° 267/2012 concerning restrictive
measures against Iran and Articles 29 and 30 of Regulation (EU) n° 36/2012 concerning
restrictive measures in view of the situation in Syria.

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L.

Outreach and Communication

56.

The effectiveness of EU restrictive measures is strengthened by the adoption of similar
measures by third countries. In principle therefore it is preferable for sanctions to be adopted
in the framework of the UN. Where this is not possible, the EU should seek the broadest
possible support from the international community to exert pressure on the targeted country.

57.

When adopting autonomous sanctions, the EU should, through outreach, , actively seek
cooperation and if possible adoption of similar measures by relevant third countries in orderto minimize substitution effects and strengthen the impact of restrictive measures. In
particular, candidate countries should be systematically invited to align themselves with themeasures imposed by the EU. In addition, the issue of uniform and consistent interpretationand effective implementation of UN sanctions regimes should regularly be included inconsultations with key partners. EU delegations should be fully involved in this process.

58.

The EU and its Member States should actively and systematically communicate on EU
sanctions, in order to give them visibility and avoid any misperception, in particular from thelocal civilian population. Such communication will also ensure the maximum political impactof the measures. Common messages should be discussed in the relevant geographical working
party in consultation with the RELEX working party with regard to the legal, technical andhorizontal consequences of the measures.

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III. Standard wording for legal instruments
The standard wording set out in this Chapter should be used for all relevant legal instruments
concerning EU restrictive measures, except if it is necessary to use different wording in order toimplement a UN Security Council Resolution correctly.
The standard provisions on exemptions should be adapted, where appropriate.

A.

Definitions

For the purposes of EU restrictive measures, the following definitions will apply. Further
definitions will be worked out as necessary.
59.

The term "technical assistance" shall mean21:"any technical support related to repairs, development, manufacture, assembly, testing,
maintenance, or any other technical service, and may take forms such as instruction, advice,training, transmission of working knowledge or skills or consulting services; technicalassistance includes verbal forms of assistance".

59a. The term "financing and financial assistance" shall mean:"any action, irrespective of the particular means chosen, whereby the person, entity or bodyconcerned, conditionally or unconditionally, disburses or commits to disburse its own funds
or economic resources, including but not limited to grants, loans, guarantees, suretyships,
bonds, letters of credit, supplier credits, buyer credits, import or export advances and alltypes of insurance and reinsurance, including export credit insurance. Payment as well as
terms and conditions of payment of the agreed price for a good or a service, made in line withnormal business practice, do not constitute financing or financial assistance".

21

Joint Action 2000/401/CFSP (OJ L 159, 30.6.2000, p. 216).

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60.

Over the years freezing of funds has been ordered, and bans on making funds available tolisted persons and entities have been imposed, based on the following definitions:"funds" means financial assets and benefits of every kind, including but not limited to:(a) cash, cheques, claims on money, drafts, money orders and other payment instruments;(b) deposits with financial institutions or other entities, balances on accounts, debts and debt
obligations;(c) publicly- and privately-traded securities and debt instruments, including stocks andshares, certificates representing securities, bonds, notes, warrants, debentures andderivatives contracts;(d) interest, dividends or other income on or value accruing from or generated by assets;(e) credit, right of set-off, guarantees, performance bonds or other financial commitments;(f) letters of credit, bills of lading, bills of sale;(g) documents evidencing an interest in funds or financial resources.
"freezing of funds" means preventing any move, transfer, alteration, use of, access to, or
dealing with funds in any way that would result in any change in their volume, amount,location, ownership, possession, character, destination or other change that would enable theuse of the funds, including portfolio management.

61.

The following definitions have been used by the Council regarding the freezing of economic
resources and could continue to be used in EU legal instruments, as appropriate.
"economic resources" means assets of every kind, whether tangible or intangible, movable or
immovable, which are not funds but can be used to obtain funds, goods or services.
"freezing of economic resources" means preventing their use to obtain funds, goods orservices in any way, including, but not limited to, by selling, hiring or mortgaging them."

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The term "dual use good" shall mean:"items, including software and technology, which can be used for both civil and military
purposes, and shall include all goods which can be used for both non-explosive uses, andassisting in any way in the manufacture of nuclear weapons or other nuclear explosive
devices"22

B.

Arms embargoes

Equipment covered by the embargo
63.

There is a need for a uniform EU regime when imposing an arms embargo. Common Position
2008/944/CFSP23, adopted on 8 December 2008, defines the criteria Member States apply for
their exports control policy concerning arms. For this purpose a common list of militaryequipment was agreed in 200024. Unless otherwise specified, arms embargoes should beinterpreted as covering at least all goods and technology on the EU Common List of Military
Equipment.

64.

The common list of military equipment does not include items which can be used for both
civil and military purposes. Exports of such dual-use items are controlled in accordance with
Council Regulation (EC) No 428/200925. This Regulation foresees that, in deciding whether
or not to grant an export authorisation, the Member States shall take into account, inter alia,
their obligations under sanctions imposed by a legal instrument adopted by the Council or by
a decision of the OSCE or by a binding resolution of the Security Council of the United
Nations.

22
23
24

25

Art 2(1) of Council Regulation (EC) No 428/2009 of 5 May 2009 (OJ L134, 29.5.2009, p.1).
OJ L 335, 13.12.2008, p.99.
List attached to Council Declaration of 13 June 2000, issued on the occasion of the adoptionof the common list of military equipment covered by the European Union code of conduct
on arms export, OJ C 191, 8 July 2000. An updated version of the list, adopted by theCouncil on 27.2.2012, has been published in OJ C 85, 22.3.2012, p. 1.
OJ L 134, 29 May 2009, p. 1.

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LIMITEENBy its very nature (dual-use) a number of the goods listed have entirely legitimate
applications e.g. cryptographic products used in banking, equipment that can be used in
hospitals, factories, universities, offshore oil fields. An outright ban might thus have
implications that go well beyond the initial objective and be wholly inappropriate. In mostcases, a ban on exports of dual-use items, including when they would be used for civil
purposes, is, therefore, likely to be disproportionate unless applied with qualifications andscope for appropriate exemptions (evidence of legitimate purpose).
If an embargo on such items is nevertheless considered appropriate, the legal instrument
should refer to the common list of dual-use items attached to Regulation (EC) No 428/2009.
65.

Standard wording for a provision imposing an arms embargo could read:“The sale, supply, transfer or export of arms and related materiel of all types, including
weapons and ammunition, military vehicles and equipment, paramilitary equipment, andspare parts for the aforementioned, to (country) by nationals of Member States or from theterritories of Member States or using their flag vessels or aircraft, shall be prohibited
whether originating or not in their territories.”

Technical assistance and other services relating to military activities
66.

When imposing an autonomous EU embargo on arms, including weapons and ammunition,
military vehicles and equipment, paramilitary equipment, and spare parts for the
aforementioned, a prohibition on providing technical assistance relating to such equipment
should normally also be provided. In addition, a ban on financing of or providing financial
assistance for arms exports could strengthen the arms embargo.

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EN

67.

Wording of a standard article could be as follows:

CD + Reg.

“It shall be prohibited:(a)to provide technical assistance, brokering services26 and other services related tomilitary activities and to the provision, manufacture, maintenance and use of arms andrelated materiel of all types, including weapons and ammunition, military vehicles andequipment, paramilitary equipment, and spare parts for the aforementioned, directly or
indirectly to any natural or legal person, entity or body in, or for use in (country);(b)

to provide financing or financial assistance related to military activities, including inparticular grants, loans and export credit insurance, as well as insurance andreinsurance for any sale, supply, transfer or export of arms and related materiel, or forthe provision of related technical assistance, brokering services and other services
directly or indirectly to any person, entity or body in, or for use in (country).

(c)

to participate, knowingly and intentionally, in activities the object or effect of which is
to circumvent the prohibitions referred to at points (a) or (b)."Exemptions
68.

It may be appropriate to allow exemptions to the ban on exports of arms and related
equipment for humanitarian purposes as, in post-conflict areas, certain types of controlled
equipment can make important contributions to the safety of the civilian population and to
economic reconstruction. These exemptions should normally be limited to non-lethal militaryequipment and to exports of protective clothing for personal use. They may include de-mining
equipment and materiel intended for institution building, as appropriate.

26

Council Common Position 2003/468/CFSP of 23 June 2003 on the control of arms
brokering (OJ L 156 of 25.6.2003, p. 79).

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69.

It is desirable that exemptions on exports of non-lethal military equipment, like all others, bedealt with on a case-by-case basis, taking full account of the criteria set out in the Code of
Conduct and other EU texts and legal instruments. Member States will require adequate
safeguards against misuse of such exports and, where appropriate, provisions for repatriationof the equipment.

70.

Standard wording for a provision on exemptions to bans on exports of arms and related
equipment could read:"1. Article … shall not apply to:a)the sale, supply, transfer or export of non-lethal military equipment intended solely
for humanitarian or protective use, or for institution building programmes of the
UN and the EU, or for EU and UN crisis management operations;b)the sale, supply, transfer or export of demining equipment and materiel for use indemining operations;c)the provision of financing and financial assistance related to such equipment or tosuch programmes and operations,d)the provision of technical assistance related to such equipment or to suchprogrammes and operations,on condition that such exports have been approved in advance by (competent authority)."71.

In cases where there is a UN or EU institution building programme or an EU or UN crisis
management operation which would also require the export of lethal equipment, the above
provision would need to be complemented with the addition of “and materiel intended for…”
in indent a).

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As appropriate, institution building programmes and crisis management operations conductedby regional and sub-regional organisations may be added to the exemption in indent a).
In the case of UN institution building programmes, the sale, supply, transfer or export ofsuch materiel could be subject to approval by the relevant UN Sanctions Committee.
72.

Standard wording for a provision on protective clothing could read as follows:"Article … shall not apply to protective clothing, including flak jackets and military
helmets, temporarily exported to (country) by United Nations personnel, personnel of the
EU or its Member States, representatives of the media and humanitarian anddevelopment workers and associated personnel for their personal use only."C.

Restrictions on equipment used for internal repression and other specific imports or exports

73.

If a policy of internal repression is at the basis of the imposition of restrictive measures, a ban
on exports and related services, such as maintenance and repair, of certain equipment isappropriate. EU legal instruments could refer to or use an agreed list when deciding anembargo on exports of items that could be used for internal repression. A list is annexedwhich, if the Council so decides, defines the scope of the specific export restriction forequipment which might be used for internal repression27.

27

The list focuses on items which might be used for internal repression and which are very
close to items listed in the EU Common Military List; it does not cover items listed in the
EU Common Military List; it does not cover items controlled by Regulation (EC) No
1236/2005 (the "Anti-Torture-Regulation”). With respect to problems in defining anadequate borderline between controlled equipment and equipment typical for consumer or
leisure type activities, the list contains no entries for goods which may belong to standard
consumer and leisure time activities.

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74.

Standard wording for restrictions on equipment used for internal repression could read:"It shall be prohibited:a)to sell, supply, transfer or export, directly or indirectly, equipment which might be used
for internal repression as listed in Annex I, whether or not originating in the Union, toany natural or legal person, entity or body in, or for use in [name of state];b)

to provide technical assistance related to the equipment referred to at point (a), directly
or indirectly to any natural or legal person, entity or body in, or for use in [name ofstate];

c)to provide financing or financial assistance related to the equipment referred to at point(a), directly or indirectly to any natural or legal person, entity or body in, or for use in[name of state];d)to participate, knowingly and intentionally, in activities the object or effect of which is
to circumvent the prohibitions referred to in points (a), (b) or (c).

75.

It can also be appropriate to impose restrictive measures to prevent the misuse of equipment,
technology or software for monitoring and interception of the Internet or of other forms ofcommunication.

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76.

Other lists such as a list of petroleum and petroleum products have been developed within the
EU framework28. Future lists defining the scope of specific export or import control regimes
may constitute a useful reference for specific export or import bans, if it is considerednecessary to ban all trade of the specific, controlled category in relation to a particularcountry, in order to achieve the objectives of the CFSP. The lists of goods which are subject
to a specific export/import ban could, if appropriate, be described taking into account thedescriptions used in Council Regulation (EEC) No 2658/87. If this is not possible and if
appropriate, the goods could be described in a way which allows the correlation with thedescriptions used in Council Regulation (EEC) No 2658/87.

77.

The exemptions from such measures should be sufficient to allow humanitarian action whereappropriate and to take full account of the objective of the restrictive measures.

D.

Restrictions on admission (visa or travel ban)

78.

Several CFSP legal acts foresee a ban on admission of specific nationals of third countries
that are listed in an annex to the legal instrument.

79.

Regulation (EC) No 539/2001 lists the third countries whose nationals must be in possessionof visas when crossing the external borders and those whose nationals are exempt from that
requirement29. Third country nationals specified in CFSP Decisions as subject to a travel ban
and who need a visa to enter the EU will not be granted a visa if they apply for one. They
must in any event be denied entry if they present themselves at an external border. Where no
visa requirement exists, or a long term visa or residence permit has been issued, restrictions
on admission may require national action30.

28
29
30

See Annex I to Regulation (EC) No 1705/1998 (OJ L 215, 1.8.1998, p. 1)
OJ L 81, 21.3.2001, p. 1. The list was amended on several occasions.
Discussions are currently ongoing regarding the creation of an electronic consolidated list of
persons subject to a EU travel ban.

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80.

Standard wording for an article regarding a visa/travel ban and exemptions therefrom could
read as follows:
1.

"Member States shall take the necessary measures to prevent the entry into, ortransit through, their territories of the persons listed in the Annex, (indication of
criteria/categories, if not already specified in the text);

2.

Paragraph 1 will not oblige a Member State to refuse its own nationals entry into
its territory.

3.

Paragraph 1 shall be without prejudice to the cases where a Member State isbound by an obligation of international law, namely:(i) as a host country of an international intergovernmental organisation;(ii) as a host country to an international conference convened by, or under the
auspices of, the United Nations; or(iii) under a multilateral agreement conferring privileges and immunities; or(iv) under the 1929 Treaty of Conciliation (Lateran pact) concluded by the Holy
See (State of the Vatican City) and Italy.

4.

Paragraph 3 shall be considered as applying also in cases where a Member Stateis host country of the Organisation for Security and Cooperation in Europe(OSCE).

5.

The Council shall be duly informed in all cases where a Member State grants an
exemption pursuant to paragraphs 3 or 4.

6.

Member States may grant exemptions from the measures imposed in paragraph 1
where travel is justified on the grounds of urgent humanitarian need, or on
grounds of attending intergovernmental meetings and those promoted or hosted by
the European Union, or hosted by a Member State holding the Chairmanship in
office of the OSCE, where a political dialogue is conducted that directly promotes
the policy objectives of restrictive measures, including democracy, human rights
and the rule of law in (country).

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A Member State wishing to grant exemptions referred to in paragraph 6 shallnotify the Council in writing. The exemption will be deemed to be granted unless
one or more of the Council Members raises an objection in writing within two
working days of receiving notification of the proposed exemption. In the event that
one or more of the Council members raises an objection, the Council, acting by aqualified majority, may decide to grant the proposed exemption.

8.

In cases where pursuant to paragraphs 3, 4, 6 and 7, a Member State authorizes
the entry into, or transit through, its territory of persons listed in the Annex, theauthorization shall be limited to the purpose for which it is given and to thepersons concerned thereby."81.

It is understood that where a person who is subject both to an asset freeze and to a travel ban
receives an authorisation granted by a Member State pursuant to paragraphs 3, 4, 6 and 7 of
the above standard Article, Member States are not obliged to seize funds carried by that
person and which that person may reasonably require for the purpose of the visit for which hehas received that authorisation.

E.

Financial restrictions

82.

Standard wording for freezing of funds through legal text based on Article 215 of the Treaty
on the Functioning of the European Union could read:"1.

All funds and economic resources belonging to, owned, held or controlled by[individual members of the Government of (country) and] any natural or legal person,
entity or body [associated with them]31 as listed in Annex X shall be frozen.

2.

No funds or economic resources shall be made available, directly or indirectly32, to or
for the benefit of natural or legal persons, entities or bodies listed in Annex X."

31
32

These parts of the text may, in some cases, not be applicable (e.g. in the case of measurestargeting terrorists).
It is noted that submitting and forwarding the necessary documents to a listed bank for the
purpose of their final transfer to a person, entity or body that is not listed, to trigger
payments allowed, does not constitute making funds available.

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83.

Standard wording for an article containing exemptions from the freezing of funds and theprohibition of making funds or economic resources available could read33:"1.

By way of derogation from Article ……(freezing of funds and economic resources of listed
persons and entities), the competent authorities, as indicated on the websites listed in
Annex Y, may authorise the release of certain frozen funds or economic resources or the
making available of certain funds or economic resources, under such conditions as it
deems appropriate, after having determined that the funds or economic resources
concerned are:(a)necessary to satisfy the basic needs of natural or legal persons, entities orbodies listed in Annex X, and dependent family members of such natural
persons, including payments for foodstuffs, rent or mortgage, medicines andmedical treatment, taxes, insurance premiums, and public utility charges,(b)intended exclusively for payment of reasonable professional fees andreimbursement of incurred expenses associated with the provision of legal
services,(c)intended exclusively for payment of fees or service charges for routine
holding or maintenance of frozen funds or economic resources,(d)

necessary for extraordinary expenses, provided that the relevant competentauthority has notified the grounds on which it considers that a specificauthorisation should be granted, to the competent authorities of the otherMember States and the Commission at least two weeks prior to theauthorisation,

33

In cases of implementation of mandatory UNSC resolutions (see paragraph 44) the wording
may have to be adapted.

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LIMITEEN(e)to be paid into or from an account of a diplomatic mission or consular postor an international organization enjoying immunities in accordance withinternational law, insofar as such payments are intended to be used for
official purposes of the diplomatic mission or consular post or internationalorganization,34(f)necessary to ensure human safety or environmental protection."

Member States shall inform the other Member States and the Commission of any
authorisation granted under this article.
2.

Article .. (prohibition of making funds or economic resources available to listed persons
and entities) shall not apply to the addition to frozen accounts of:(a)interest or other earnings on those accounts; or(b)payments due under contracts, agreements or obligations that were concluded orarose prior to the date on which those accounts became subject to the provisionsof this Decision /Regulation or(c)payments due under judicial, administrative or arbitral decisions rendered in a
EU Member State or enforceable in the Member State concerned andprovided that any such interest, other earnings and payments continue to be subject to
Article .. (freezing of funds and economic resources of listed persons and entities)."34

Insofar as restrictive measures might have an effect on diplomatic missions and members of
their staff enjoying privileges and immunities (notably in cases where they hold accounts
with designated banks), the necessary steps must be taken to ensure that such missions
and their staff members are not hindered as a consequence in the performance of theirofficial functions, in accordance with Article 25 of the 1961 Vienna Convention on
Diplomatic Relations.

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84.

Standard wording for an article on the crediting of frozen accounts could be thefollowing:Reg.

"Article ...(prohibition of making funds or economic resources available to listed naturalor legal persons, entities or bodies) shall not prevent the crediting of the frozen accounts
by financial or credit institutions that receive funds transferred by third parties to theaccount of the listed person, entity or body, provided that any additions to such accounts
will also be frozen. The financial or credit institution shall inform the competentauthorities about such transactions without delay."
85.

Standard wording for a specific article containing exemptions from the freezing of funds
and the prohibition of making funds or economic resources available when these funds or
economic resources are subject to a judicial, administrative or arbitral decision could
read:“By way of derogation from Article … (freezing funds and economic resources of listed
natural or legal persons, entities or bodies), the competent authorities of the Member States,
as listed in Annex Y , may authorise the release of certain frozen funds or economic
resources, if the following conditions are met:(a) the funds or economic resources are subject of an arbitral decision rendered prior to thedate on which the natural or legal person, entity or body referred to in Article …(freezing
funds and economic resources of and prohibition of making funds or economic resources
available to listed natural or legal persons, entities or bodies was listed in Annex X or of a
judicial or administrative decision rendered in the EU, or a judicial decision enforceable in
the Member State concerned, prior to or after that date;(b) the funds or economic resources will be used exclusively to satisfy claims secured by sucha decision or recognised as valid in such a decision, within the limits set by applicable laws
and regulations governing the rights of persons having such claims;(c) the decision is not for the benefit of a person, entity or body listed in Annex X;(d) recognising the decision is not contrary to public policy in the Member State concerned.

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LIMITEENThe competent authority will inform the competent authorities of the other Member States andthe Commission of any authorisation granted under this Article.”
86.

Standard wording for a specific article containing an exemption for prior contracts could read:

By way of derogation from Article … (freezing of funds and economic resources of listed
persons, entities and bodies) and provided that a payment by a person, entity or body listed
in Annex X is due under a contract or agreement that was concluded by, or an obligationthat arose for the person, entity or body concerned, before the date on which that person,
entity or body had been designated, the competent authorities of the Member States, as
indicated on the websites listed in Annex Y, may authorise, under such conditions as they
deem appropriate, the release of certain frozen funds or economic resources, provided thatthe competent authority concerned has determined that:(i) the funds or economic resources shall be used for a payment by a person, entity or bodylisted in Annex X ;(ii) the payment is not in breach of Article … (prohibition of making available funds or
economic resources to listed persons, entities and bodies);
Option 1 - The Member State concerned shall, at least [x weeks] prior to the grant of eachauthorisation, notify the other Member States and the Commission of that determination andits intention to grant an authorisation."
Option 2 - The Member State concerned shall notify within [x weeks] the other Member
States and the Commission of that determination and of each authorisation granted"

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Option 3 - The Member State concerned shall notify the other Member States and theCommission of these determinations and of the number and nature of authorisations granted
at [x-monthly intervals]

87.

Possible wording for a specific article containing an exemption for humanitarian needs, to be
included only if considered warranted by actual circumstances related to the targetedcountry/regime and to be adapted where necessary, could read:
By way of derogation from Article … (freezing of funds and economic resources of listed
persons and entities), the competent authorities in the Member States as identified on thewebsites listed in Annex … may authorise the release of certain frozen funds or economic
resources, or the making available of certain funds or economic resources, under suchconditions as they deem appropriate, after having determined that the provision of such funds
or economic resources are necessary for humanitarian purposes, such as delivering or
facilitating the delivery of assistance, including medical supplies, food, or the transfer ofhumanitarian workers and related assistance or for evacuations from xxx.
The Member State concerned shall inform the other Member States and the Commission of
any authorisations granted under this Article within four weeks following the authorisation.

F.

Non-liability clauseStandard wording for a specific article containing a non-liability clause could read:1.

The freezing of funds and economic resources or the refusal to make funds or economic
resources available, carried out in good faith on the basis that such action is inaccordance with this Regulation, shall not give rise to liability of any kind on the part of
the natural or legal person, entity or body implementing it, or its directors or employees,
unless it is proved that the funds and economic resources were frozen or withheld as aresult of negligence.

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2.

Actions by natural or legal persons, entities or bodies shall not give rise to liability of any
kind on their part, if they did not know, and had no reasonable cause to suspect, that theiractions would infringe the measures set out in this Regulation.

G.

No claims Clause

Possible wording for a specific article containing a no claims clause, to be adapted where
necessary, could read:1.

No claims in connection with any contract or transaction the performance of which has
been affected, directly or indirectly, in whole or in part, by the measures imposed under
this Regulation, including claims for indemnity or any other claim of this type, such as aclaim for compensation or a claim under a guarantee, notably a claim for extension or
payment of a bond, guarantee or indemnity, particularly a financial guarantee or financial
indemnity, of whatever form, shall be satisfied, if they are made by:(a)designated persons, entities or bodies listed in Annex X or Y or Z(b)

any other xxx person, entity or body, including the xxxx.

(c)

any person, entity or body acting through or on behalf of one of the persons, entities
orbodies referred to in points (a) or (b).
2.

In any proceedings for the enforcement of a claim, the onus of proving that satisfying theclaim is not prohibited by paragraph 1 shall be on the person seeking the enforcement ofthat claim.

3.

This Article is without prejudice to the right of the persons, entities and bodies referred toin paragraph 1 to judicial review of the legality of the non-performance of contractual
obligations in accordance with this Regulation.

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H.

Jurisdiction

88.

The standard clause setting out to what extent the restrictive measures should apply insituations where links exist with the EU as well as with other members of the international
community could read:Reg.

"This Regulation shall apply:(a) within the territory of the Union, including its airspace;(b) on board any aircraft or any vessel under the jurisdiction of a Member State;(c) to any person inside or outside the territory of the Union who is a national of a Member
State;(d) to any legal person, entity or body, inside or outside the territory of the Union, which isincorporated or constituted under the law of a Member State;(e) to any legal person, entity or body in respect of any business done in whole or in partwithin the Union."I.

Infringements

89.

The Regulations imposing restrictive measures contain provisions regarding penalties to betaken in case of infringement. Standard wording for this issue:

Reg.

"1.

The Member States shall lay down the rules on penalties applicable to infringements ofthe provisions of this Regulation and shall take all measures necessary to ensure thatthey are implemented. The penalties provided for must be effective, proportionate anddissuasive.

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EN2.

The Member States shall notify these rules to the Commission without delay after entry
into force of the Regulation and shall notify it of any subsequent amendment.”90.

It is desirable that the restrictive measures are implemented as soon as possible. To that end,
Member States shall aim at having in place the rules referred to in the paragraph above within
30 days, following their respective national procedures. The Member States could also
consider adopting national rules which set sanctions for infringement of Regulations imposing
restrictive measures which will apply by default.

J.

Expiry/Review
CD91.

Standard wording for an expiration clause in the case of EU autonomous sanctions could read:“This Decision shall apply for a … period. It shall be kept under constant review. It shallbe renewed, or amended as appropriate, if the Council deems that its objectives have notbeen met."

92.

Standard wording for a review clause in the case of EU autonomous sanctions could read:CD“ThisDecision shall be reviewed … after its adoption and every … thereafter. It shall be repealed if
the Council deems that its objectives have been met.”

93.

Standard wording for an amendment/repeal clause in the case of implementation of UN
Security Council resolutions
CD“This Decision shall be amended or repealed as appropriate, in accordance withdeterminations made by the Security Council."

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LIMITEENIV. Monitoring and evaluation of restrictive measures

94.

The effectiveness of EU restrictive measures – and also the EU’s credibility – hinges to alarge degree on restrictive measures being implemented and enforced promptly and without
exceptions in all Member States. In order to ensure adequate follow-up to EU decisions toimpose restrictive measures, a specific Council body has been set up dedicated to exchanging
experience and developing best practice in the implementation and application of restrictive
measures. Thus the Foreign Relations Counsellors Working Party meets regularly in its
specific 'Sanctions formation' (RELEX/Sanctions), reinforced as necessary including withexperts from capitals. The mandate of the Relex/Sanctions formation is the following35:
Exchanging information and experiences on the implementation of specific restrictive
measures regimes imposed by the EU;Contributing to developing best practices among Member States in implementation of
restrictive measures;Collecting all information available on alleged circumvention of EU restrictive
measures and other international sanctions regimes of interest to the EU by targetedstates, persons and entities;

Exchanging information and experience, including with third states and internationalorganisations as appropriate, on the implementation of international sanctions regimesof interest to the EU;Assisting in evaluating the results and difficulties in the implementation of restrictive
measures regimes;

35

Mandate of RELEX/Sanctions is set out in doc. 5603/04.

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LIMITEENExchanging views on ways and means to ensure the efficiency of management of
restrictive measures regimes, including of their humanitarian provisions;

Examining all relevant technical issues relating to the implementation of EU restrictive
measures.

The Relex/Sanctions formation has notably identified EU best practices for effective
implementation of financial restrictive measures36.
95.

Both the CFSP legal instruments and the EC Regulations should provide for regular reportingon the implementing measures and enforcement actions taken by Member States to give effectto the restrictive measures. Monitoring at EU level should enable a more consistentassessment as to whether the restrictive measures are having the impact they need to beeffective. This is crucial where autonomous measures are at issue, since it provides the basis
for decisions on the need for improvement of legal texts and, to some extent, for those on theusefulness of maintaining the measures.

36

8666/1/2008 REV 1.

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ANNEX I

Recommendations for working methods for EU autonomous sanctions
Restrictive measures against third countries, individuals or entities are an essential foreign policy
tool of the EU in pursuing its objectives in accordance with the principles of the Common Foreignand Security Policy. In general terms, restrictive measures are imposed to bring about a change inpolicy or activity by the targeted country, part of a country, government, entities or individuals.
They are preventive, non-punitive, instruments which should allow the EU to respond swiftly topolitical challenges and developments. Sanctions should be used as part of an integrated andcomprehensive policy approach involving political dialogue, complementary efforts and other
instruments. The EU and its Member States should actively and systematically communicate on EU
sanctions, including with the targeted country and its population.
The measures should target the policies and the means to conduct them and those identified as
responsible for the policies or actions that have prompted the EU decision to impose sanctions.
Such targeted measures should minimise adverse consequences for those not responsible for suchpolicies and actions, in particular the local civilian population or legitimate activities in or with thecountry concerned. The political objectives and criteria of the restrictive measures should be clearly
defined in the legal acts. This would allow the EU to identify the conditions for amending or lifting
the sanctions. The type of measures will vary depending on their objectives and their expected
effectiveness in achieving these objectives under the particular circumstances, reflecting the EU’s
targeted and differentiated approach.
Restrictive measures must respect human rights and fundamental freedoms, in particular due
process and the right to an effective remedy in full conformity with the jurisprudence of the EU
Courts. The measures imposed must be proportionate to their objectives.
The uniform and consistent interpretation and effective implementation of the restrictive measures
is essential to ensure their effectiveness in achieving the desired political objective.

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LIMITEENThe European External Action Service (EEAS) should have a key role in the preparation and review
of sanctions regimes as well as in the communication and outreach activities accompanying the
sanctions, in close cooperation with Member States, relevant EU delegations and the Commission.
Proposals for restrictive measures
1.

Proposals for restrictive measures, including proposals for listings or de-listings, in respectof country-specific EU autonomous sanctions should be submitted by the Member States orby the EEAS. These proposals should form part of the broader policy approach agreed by
the Council. In principle they should be distributed by COREU with the appropriate level ofclassification.

2.

The political aspects and broader parameters of the proposals should then be discussed in therelevant regional working party assisted by sanctions experts from the EEAS and experts
from the Commission and the Council Legal Service. Where appropriate, the Political andSecurity Committee will discuss the proposals and provide political orientation to theworking parties concerned, notably on the type of measures selected for further proceedings.

3.

The Heads of Missions (HoMs) located in the country(ies) concerned will be invited toprovide, where appropriate, their advice on proposals for restrictive measures or additional
designations. Equally, the Commission services will be invited to provide, whereappropriate, their advice on specific measures which would fall under the competence of theUnion.

4.

All the legal, technical and horizontal aspects of the proposed restrictive measures should be
discussed in RELEX. The proposals for the Council Decision introducing the restrictive
measures and for the Council Regulation defining the specific measures falling under thecompetence of the Union will be presented in RELEX for discussion, respectively by the
EEAS and the Commission. Preferably, the two legal acts should be submitted to
COREPER and formally adopted by the Council at the same time, or with minimum timedelay between the two instruments.

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Proposals for listings
Identifiers
5.

Proposals for autonomous listings should be clear and unequivocal. In particular they shall
aim to include sufficient details (identifiers) so that the listing decision, once it has enteredinto effect, can be effectively implemented by economic operators and national authorities(e.g. banks, consulates). Identifying information is also crucial to ensure that restrictive
measures do not affect non targeted persons and entities. With regard to natural persons, theinformation shall aim to include in particular names (where available also in the original
language and with appropriate transliteration), including aliases, date and place of birth,
nationality, passport and identity card numbers, gender, address, if known , and function or
profession. With regard to groups, legal persons or entities such information shall aim toinclude names, place and date of registration, registration number and place of business. The
date of designation should also be included. A model template is attached.

6.

It is primarily the responsibility of those submitting the proposal to provide such identifiers.
Other delegations should contribute to this process. Input from the HoMs located in the
country(ies) concerned will be requested, where appropriate.

Reasons for listing
7.

Proposals for autonomous listings should include individual and specific reasons for eachlisting. The purpose of the reasons is to state, as concretely as possible, why the Council
considers, in the exercise of its discretion, that the person, group or entity concerned falls
under the designation criteria defined by the relevant legal act, taking into consideration theobjectives of the measures as expressed in its introductory paragraphs.

8.

It is primarily the responsibility of those submitting the proposal to provide such reasons.
Other delegations should contribute to this process. Input from the HoMs located in the
country(ies) concerned will be requested, where appropriate.

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The reasons for listings will be finalised by the RELEX working party on the basis of theelements discussed in the regional working party. If needed, RELEX may request additional
information from the regional working party in order to ensure that listings are legally soundand properly substantiated.

10.

These reasons should, in principle, be set out in a separate column in the Annex to the legal
act containing the list of persons, groups and entities subject to restrictive measures. As thisact will be published in the Official Journal, these reasons should be capable of being madepublic. In exceptional cases, where it is considered that the reasons for the listing are notsuitable for publication, because of considerations of privacy and security, the reasons willneed to be addressed separately to the person, group or entity concerned.

Notification of listing
11.

The notification of the decision and of the reasons justifying the listing is achieved by meansof a letter, where appropriate, or through the publication of a notice in the Official Journal(C series) on the same day as the publication of the legal act in question indicating that theCouncil will transmit the reasons for listing on request. A model notice is attached. The
notification will inform the persons, groups and entities concerned about their right topresent observations and to request a review of the decision taken by the Council as well asof their right to challenge the Council's decision before the General Court in accordancewith the relevant provisions in the EU treaties.

Deliberations of the working party
12.

If necessary, the competent working party may be reinforced by experts from other Council
working parties.

13.

The deliberations of the working party are confidential. This is particularly important incases where the restrictive measures would impose an asset freeze. Adequate steps should betaken to ensure the confidentiality of the proceedings, notably with regard to the distributionof proposals.

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The Chair of the working party concerned will organise meetings as and when necessary;
once discussed in the working party, the Chair could seek approval of proposed listings orde-listings using the silence procedure at working party level. Delegations should be given
sufficient time to examine proposals before they are discussed, bearing in mind the agreed
political imperatives that may drive the timetable for a proposal. Legal acts on a urgent
matter may be adopted by written procedure.

Review of the measures
15.

The review of EU autonomous sanctions or EU additions to UN sanctions should take placeat regular intervals and in accordance with the provisions of the relevant legal acts. Regularassessments of sanctions regimes by the relevant working party and RELEX, assisted by the
EEAS, the Commission and HoMs, should permit the adjustment of the measures, as
needed, in function of the developments with regard to the stated objectives and theeffectiveness of the measures in that respect.

16.

The uniform and consistent interpretation and effective implementation of the restrictive
measures is an essential element ensuring their effectiveness in order to achieve the desired
political objectives. Member States shall inform each other of the measures taken under the
relevant legal acts and shall supply each other with any other relevant information at theirdisposal in connection with these acts, in particular information in respect of violation andenforcement problems and judgments of national courts. Information on accounts andamounts frozen should also be provided in line with relevant legal requirements. In addition,
Member States shall inform each other of any derogation granted in accordance with theprocedures foreseen in the legal acts. The Commission and the EEAS should be fully
involved in this process. The Council Legal Service should inform the relevant working
party and the RELEX working party of any relevant judgment by the EU courts.

17.

The established forum of the RELEX Sanctions formation and the informal so-called“Sanctions Forum” should be used by Member States and their experts in order to addressinterpretation and implementation issues.

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Processing requests for de-listings
18.

Individual requests for de-listing should be processed, as soon as they arrive, in accordancewith the applicable legal instrument and EU Best Practices for the effective implementationof restrictive measures.37

19.

The General Secretariat of the Council will act as a mailbox for de-listing requests. Any
observations or requests for reconsideration of a listing, with supporting documentation, areto be forwarded in writing to the Council of the European Union in accordance with thereview process foreseen in the relevant sanctions regime and as explained in theaccompanying notice published in the OJ or notification letter where the address isavailable.

20.

When the Council Secretariat receives such requests, it will forward them to the competentregional working party for consideration on the basis of a preliminary analysis prepared by
the EEAS and the Council Legal Service. The legal, technical and horizontal aspects of therequests for de-listing and the EU reply will be discussed in the RELEX working party.

Outreach and communication
21.

The effectiveness of restrictive measures is directly related to the adoption of similar
measures by third countries. In principle therefore it is preferable for sanctions to be adopted
in the framework of the UN. Where this is not possible, the aim should be to bring as muchas possible of the international community to exert pressure on the targeted country.

37

Para 17 in doc. 8666/1/08.

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22.

When adopting autonomous sanctions, the EU should, through outreach, actively seek
cooperation and if possible adoption of similar measures by relevant third countries in orderto minimize substitution effects and strengthen the impact of restrictive measures. In
particular, candidate countries should be systematically invited to align themselves with themeasures imposed by the EU. In addition, the issue of uniform and consistent interpretationand effective implementation of UN sanctions regimes should regularly be included inconsultations with key partners. EU delegations should be fully involved in this process.

23.

The EU and its Member States should actively and systematically communicate on EU
sanctions, in order to give them visibility and avoid any misperception, in particular from thelocal civilian population. Such communication will also ensure the maximum political impactof the measures. Common messages should be discussed in the relevant geographical working
party in consultation with the RELEX working party with regard to the legal, technical andhorizontal consequences of the measures.

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Attachment

Templates to be used as a model for listing persons, groups and entities
subject to restrictive measures

A.

Template to be used as a model for listing persons subject to restrictive measures

Surname, First Name (where available also in the original language and with appropriate
transliteration):
Alias:
Date of birth:
Place of birth (town, country):
Nationality:
Passport or ID Number (including country that issued and date and place of issue):
Gender:Address (No, street, postal code, town, country):
Function or profession:
Other information (e.g. name of father and mother, fiscal number, telephone or fax number):

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B.

Template to be used as a model for listing groups and entities subject to restrictive measures

Name:
Place of registration:
Date of registration:
Registration number:
Principal place of business:
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MODEL NOTICE
Council of the European Union
The following information is brought to the attention of the persons, entities and bodies that appear
in the Annex to Council Decision [number] of [date].38
The Council of the European Union has determined that the persons, entities and bodies that appear
on the above-mentioned list fulfil the criteria set out in Article ..... of Council Regulation (EC)xxxx/200X of jj/mm/dd concerning ..........................39, and they have consequently been included,by the decision referred to above, in Annex XX of that Regulation . That Regulation provides i. a.
for a freezing of all funds, other financial assets and economic resources belonging to the persons,entities or bodies concerned and that no funds, other financial assets and economic resources may
be made available to them, whether directly or indirectly.
The attention of the persons, entities and bodies concerned is drawn to the possibility of making anapplication to the competent authorities of the relevant Member State(s) as indicated in the websites in Annex XX of the Regulation, in order to obtain an authorisation to use frozen funds forbasic needs or specific payments (cf. Articles XX of the Regulation).
The persons, entities or bodies concerned may submit a request to the Council, together withsupporting documentation, that the decision to include them on the above-mentioned list should bereconsidered.

38
39

OJ L …
OJ L …

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Any such requests should be sent to the following address: Council of the European Union, General
Secretariat, DG C Coordination Unit, Rue de la Loi 175, B-1048 Brussels.
The attention of the persons and entities concerned is also drawn to the possibility of challenging
the Council's decision before the General Court of the European Union, in accordance with theconditions laid down in Article 275, 2nd paragraph, and Article 263, 4th and 6th paragraphs, of theTreaty on the Functioning of the European Union.

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ANNEX II

List of equipment which might be used for internal repression

Equipment for internal repression envisaged by Article (X)1.

Fire-arms, ammunition and related accessories therefor, as follows:
1.1

Firearms not controlled by ML 1 and ML 2 of the EU Common Military List;

1.2

Ammunition specially designed for the firearms listed in 1.1 and specially designed
components therefor;

1.3

Weapon-sights not controlled by the EU Common Military List.

2.

Bombs and grenades not controlled by the EU Common Military List.

3.

Vehicles as follows:
3.1

Vehicles equipped with a water cannon, specially designed or modified for the
purpose of riot control;

3.2

Vehicles specially designed or modified to be electrified to repel borders;

3.3

Vehicles specially designed or modified to remove barricades, including construction
equipment with ballistic protection;

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3.4

Vehicles specially designed for the transport or transfer of prisoners and/or
detainees;

3.5

Vehicles specially designed to deploy mobile barriers;

3.6

Components for the vehicles specified in 3.1 to 3.5 specially designed for the
purposes of riot control.

Note 1 This item does not control vehicles specially designed for the purposes of fire-fighting.
Note 2 For the purposes of item 3.5 the term "vehicles" includes trailers.
4.

Explosive substances and related equipment as follows:
4.1

Equipment and devices specially designed to initiate explosions by electrical or nonelectrical means, including firing sets, detonators, igniters, boosters and detonating
cord, and specially designed components therefor; except those specially designed
for a specific commercial use consisting of the actuation or operation by explosivemeans of other equipment or devices the function of which is not the creation of
explosions (e.g., car air-bag inflaters, electric-surge arresters of fire sprinkler
actuators);

4.2

Linear cutting explosive charges not controlled by the EU Common Military List;

4.3

Other explosives not controlled by the EU Common Military List and related
substances as follows:

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amatol;b.

nitrocellulose (containing more than 12,5 % nitrogen);c.

nitroglycol;d.

pentaerythritol tetranitrate (PETN);e.

picryl chloride;f.

2,4,6-trinitrotoluene (TNT).

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5.

Protective equipment not controlled by ML 13 of the EU Common Military List as follows:
5.1

Body armour providing ballistic and/or stabbing protection;

5.2

Helmets providing ballistic and/or fragmentation protection, anti-riot helmets, anti-riot
shields and ballistic shields.

Note

6.

This item does not control:–

equipment specially designed for sports activities;–

equipment specially designed for safety of work requirements.

Simulators, other than those controlled by ML 14 of the EU Common Military List, fortraining in the use of firearms, and specially designed software therefor.

7.

Night vision, thermal imaging equipment and image intensifier tubes, other than thosecontrolled by the EU Common Military List.

8.

Razor barbed wire.

9.

Military knives, combat knives and bayonets with blade lengths in excess of 10cms.

10.

Production equipment specially designed for the items specified in this list.

11.

Specific technology for the development, production or use of the items specified in this list.

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