# C_2019093EN.01000401.xml

| 11.3.2019 | EN | Official Journal of the European Union | C 93/4 |
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11.3.2019

EN

Official Journal of the European Union

C 93/4

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Judgment of the Court (Third Chamber) of 17 January 2019 (request for a preliminary ruling from the Kúria — Hungary) — SH v TG

(Case C-168/17) (1)

((Reference for a preliminary ruling - Common foreign and security policy - Restrictive measures adopted in view of the situation in Libya - A chain of contracts concluded with the aim of issuing a bank guarantee for the benefit of an entity on a list of entities whose funds are to be frozen - Payment of costs arising under counter guarantee agreements - Regulation (EU) No 204/2011 - Article 5 - Definition of ‘funds made available to an entity referred to in Annex III to Regulation No 204/2011’ - Article 12(1)(c) - Definition of ‘a claim under a guarantee’ - Definition of a ‘person or entity acting on behalf of a person referred to in Article 12(1)(a) or (b)’))

(2019/C 93/05)

Language of the case: Hungarian

Referring court

Kúria

Parties to the main proceedings

Applicant: SH

Defendant: TG

Intervening party: UF

Operative part of the judgment

| 1. | Article 5(2) of Council Regulation (EU) No 204/2011 of 2 March 2011 concerning restrictive measures in view of the situation in Libya is to be interpreted as:






  — | being applicable in a situation, such as that at issue in the main proceedings, in which the costs payable under a counter guarantee agreement must be paid by an EU bank to a Libyan bank listed in Annex III to that regulation; and |
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1.

Article 5(2) of Council Regulation (EU) No 204/2011 of 2 March 2011 concerning restrictive measures in view of the situation in Libya is to be interpreted as:

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being applicable in a situation, such as that at issue in the main proceedings, in which the costs payable under a counter guarantee agreement must be paid by an EU bank to a Libyan bank listed in Annex III to that regulation; and

| — | not being applicable, in principle, in a situation, such as that at issue in the main proceedings, in which the costs payable under a counter guarantee agreement must be paid by an EU bank to a Libyan bank whose name is no longer on the list in Annex III to that regulation or by one EU bank to another EU bank, where the bank guarantee granted by the Libyan bank benefits an entity which is on that list, unless such a payment leads, as a result of the legal or financial links that exist between the bank receiving that payment and the entity on that list, to the costs in question being made available indirectly to that entity. |
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not being applicable, in principle, in a situation, such as that at issue in the main proceedings, in which the costs payable under a counter guarantee agreement must be paid by an EU bank to a Libyan bank whose name is no longer on the list in Annex III to that regulation or by one EU bank to another EU bank, where the bank guarantee granted by the Libyan bank benefits an entity which is on that list, unless such a payment leads, as a result of the legal or financial links that exist between the bank receiving that payment and the entity on that list, to the costs in question being made available indirectly to that entity.

| 2. | Article 12 of Regulation No 204/2011 is to be interpreted as:






  — | being applicable, in its original version, where costs payable under counter guarantee agreements must be paid by an EU bank to a Libyan bank listed in Annex III to that regulation and by an EU bank to a Libyan bank which is not on that list if the bank guarantee granted by the Libyan bank benefits an entity that is on that list, provided that the Libyan bank is regarded as an entity acting on behalf of the Libyan Government, which is a matter for the referring court to verify; |
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2.

Article 12 of Regulation No 204/2011 is to be interpreted as:

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being applicable, in its original version, where costs payable under counter guarantee agreements must be paid by an EU bank to a Libyan bank listed in Annex III to that regulation and by an EU bank to a Libyan bank which is not on that list if the bank guarantee granted by the Libyan bank benefits an entity that is on that list, provided that the Libyan bank is regarded as an entity acting on behalf of the Libyan Government, which is a matter for the referring court to verify;

| — | not being applicable, in the version resulting from Council Regulation (EU) No 45/2014 of 20 January 2014, where the costs payable under counter guarantee agreements must be paid by an EU bank to a Libyan bank listed in Annex III to that regulation and by an EU bank to a Libyan bank which is not on that list if the bank guarantee granted by the Libyan bank benefits an entity which is on the list, provided that those costs were paid before the entry into force of that regulation; and |
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not being applicable, in the version resulting from Council Regulation (EU) No 45/2014 of 20 January 2014, where the costs payable under counter guarantee agreements must be paid by an EU bank to a Libyan bank listed in Annex III to that regulation and by an EU bank to a Libyan bank which is not on that list if the bank guarantee granted by the Libyan bank benefits an entity which is on the list, provided that those costs were paid before the entry into force of that regulation; and

| — | not being applicable, either in the original version or in the version resulting from Regulation No 45/2014, where the costs payable under counter agreements must be paid by one EU bank to another EU bank. |
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not being applicable, either in the original version or in the version resulting from Regulation No 45/2014, where the costs payable under counter agreements must be paid by one EU bank to another EU bank.

| 3. | Article 9 of Regulation No 204/2011 is to be interpreted as not being applicable to payments of costs such as those due under the various agreements at issue in the main proceedings. |
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3.

Article 9 of Regulation No 204/2011 is to be interpreted as not being applicable to payments of costs such as those due under the various agreements at issue in the main proceedings.

| 4. | Article 17(1) of Council Regulation (EU) 2016/44 of 18 January 2016 concerning restrictive measures in view of the situation in Libya and repealing Regulation (EU) No 204/2011 must be interpreted as being applicable to the counter guarantee costs payable by one EU bank to another EU bank in a situation, such as that at issue in the main proceedings, in which the final calculation of the costs is made after the entry into force of that regulation. |
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4.

Article 17(1) of Council Regulation (EU) 2016/44 of 18 January 2016 concerning restrictive measures in view of the situation in Libya and repealing Regulation (EU) No 204/2011 must be interpreted as being applicable to the counter guarantee costs payable by one EU bank to another EU bank in a situation, such as that at issue in the main proceedings, in which the final calculation of the costs is made after the entry into force of that regulation.

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(1)  OJ C 221, 10.7.2017.

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