COUNCIL REGULATION (EU) No 748/2014
of 10 July 2014
concerning restrictive measures in respect of the situation in South Sudan
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 215 thereof,
Having regard to Council Decision 2014/449/CFSP of 10 July 2014 concerning restrictive measures in view of the situation in South Sudan (1),
Having regard to the joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and the European Commission,
Whereas:
(1)
On 18 July 2011, the Council adopted Decision 2011/423/CFSP (2) which extended the arms embargo on Sudan to cover South Sudan.
(2)
On 24 November 2011, the Council adopted Regulation (EU) No 1215/2011 (3) which extended the scope of application of the arms embargo to South Sudan.
(3)
On 10 July 2014, the Council adopted Decision 2014/449/CFSP separating the measures concerning South Sudan and integrating them into a single legal act and providing for restrictions on admission and the freezing of funds and economic resources of persons obstructing the political process in South Sudan, including by acts of violence or violations of ceasefire agreements, as well as persons responsible for serious violations of human rights in South Sudan.
(4)
Those measures fall within the scope of the Treaty on the Functioning of the European Union and, therefore, in particular with a view to ensuring their uniform application in all Member States, regulatory action at the level of the Union is necessary in order to implement them.
(5)
For the sake of clarity, measures concerning South Sudan should be separated from measures concerning Sudan. Council Regulation (EC) No 131/2004 (4) should therefore be replaced by this Regulation in so far as it concerns South Sudan. Regulation (EC) No 131/2004 should also be replaced by Council Regulation (EU) No 747/2014 (5) in so far as it concerns Sudan.
(6)
This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union and notably the right to an effective remedy and to a fair trial and the right to the protection of personal data. This Regulation should be applied in accordance with those rights.
(7)
The power to amend the list in Annex I to this Regulation should be exercised by the Council, in view of the specific threat to international peace and security in the region posed by the situation in South Sudan and in order to ensure consistency with the process for amending and reviewing the Annex to Decision 2014/449/CFSP.
(8)
For the implementation of this Regulation, and in order to create maximum legal certainty within the Union, the names and other relevant data concerning natural and legal persons, entities and bodies whose funds and economic resources must be frozen in accordance with this Regulation, must be made public. Any processing of personal data should comply with Regulation (EC) No 45/2001of the European Parliament and of the Council (6) and Directive 95/46/EC of the European Parliament and of the Council (7).
(9)
In order to ensure that the measures provided for in this Regulation are effective, it should enter into force immediately,
HAS ADOPTED THIS REGULATION:
Article 1
For the purposes of this Regulation, the following definitions shall apply:
(a)
‘brokering services’ means:
(i)
the negotiation or arrangement of transactions for the purchase, sale or supply of goods and technology, or of financial and technical services, from a third country to any other third country; or
(ii)
the selling or buying of goods and technology, or of financial and technical services, that are located in third countries for their transfer to another third country;
(b)
‘claim’ means any claim, whether asserted by legal proceedings or not, made before or after the date of entry into force of this Regulation, under or in connection with a contract or transaction, and includes in particular:
(i)
a claim for performance of any obligation arising under or in connection with a contract or transaction;
(ii)
a claim for extension or payment of a bond, financial guarantee or indemnity of whatever form;
(iii)
a claim for compensation in respect of a contract or transaction;
(iv)
a counterclaim;
(v)
a claim for the recognition or enforcement, including by the procedure of exequatur, of a judgment, an arbitration award or an equivalent decision, wherever made or given;
(c)
‘contract or transaction’ means any transaction of whatever form and whatever the applicable law, whether comprising one or more contracts or similar obligations made between the same or different parties; for that purpose ‘contract’ includes a bond, guarantee or indemnity, particularly a financial guarantee or financial indemnity, and credit, whether legally independent or not, as well as any related provision arising under, or in connection with, the transaction;
(d)
‘competent authorities’ refers to the competent authorities of the Member States as identified on the websites listed in Annex II;
(e)
‘economic resources’ means assets of every kind, whether tangible or intangible, movable or immovable, which are not funds, but may be used to obtain funds, goods or services;
(f)
‘freezing of economic resources’ means preventing the use of economic resources to obtain funds, goods or services in any way, including, but not limited to, by selling, hiring or mortgaging them;
(g)
‘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 the funds to be used, including portfolio management;
(h)
‘funds’ means financial assets and benefits of every kind, including, but not limited to:
(i)
cash, cheques, claims on money, drafts, money orders and other payment instruments;
(ii)
deposits with financial institutions or other entities, balances on accounts, debts and debt obligations;
(iii)
publicly- and privately-traded securities and debt instruments, including stocks and shares, certificates representing securities, bonds, notes, warrants, debentures and derivatives contracts;
(iv)
interest, dividends or other income on or value accruing from or generated by assets;
(v)
credit, right of set-off, guarantees, performance bonds or other financial commitments;
(vi)
letters of credit, bills of lading, bills of sale; and
(vii)
documents showing evidence of an interest in funds or financial resources;
(i)
‘technical assistance’ means 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, including verbal forms of assistance;
(j)
‘territory of the Union’ means the territories of the Member States to which the Treaty is applicable, under the conditions laid down in the Treaty, including their airspace.
Article 2
It shall be prohibited to:
(a)
provide technical assistance or brokering services related to military activities and to the provision, manufacture, maintenance and use of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts therefor, directly or indirectly to any natural or legal person, entity or body in, or for use in South Sudan;
(b)
provide financing or financial assistance related to military activities, including in particular grants, loans and export credit insurance, as well as insurance and reinsurance, for any sale, supply, transfer or export of arms and related materiel, or for the provision of related technical assistance, directly or indirectly to any natural or legal person, entity or body in, or for use in South Sudan.
Article 3
By way of derogation from Article 2, the competent authorities of Member States may authorise the provision of financing and financial assistance, technical assistance and brokering services related to:
(a)
non-lethal military equipment intended solely for humanitarian, human rights monitoring or protective use, or for institution-building programmes of the UN, the African Union (AU), the European Union or the Intergovernmental Authority on Development (IGAD);
(b)
materiel intended for European Union, UN and AU crisis management operations;
(c)
de-mining equipment and materiel for use in de-mining operations;
(d)
support for the process of Security Sector Reform in South Sudan.
Article 4
Article 2 shall not apply to protective clothing, including flak jackets and military helmets, temporarily exported to South Sudan by personnel of the European Union, or its Member States, by UN or IGAD personnel, or by representatives of the media, humanitarian and development workers and associated personnel for their personal use only.
Article 5
1. All funds and economic resources belonging to, owned, held or controlled by any natural or legal person, entity or bodies as listed in Annex I shall be frozen.
2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies listed in Annex I.
3. Annex I shall include natural or legal persons, entities and bodies obstructing the political process in South Sudan, including by acts of violence or violations of ceasefire agreements, as well as persons responsible for serious violations of human rights in South Sudan, and natural or legal persons, entities or bodies associated with them.
4. Annex I shall include the grounds for the listing of natural or legal persons, entities or bodies concerned.
5. Annex I shall include, where available, information necessary to identify the natural or legal persons, entities or bodies concerned. With regard to natural persons, such information may include names including aliases, date and place of birth, nationality, passport and ID card numbers, gender, address, if known, and function or profession. With regard to legal persons, entities and bodies, such information may include names, place and date of registration, registration number and place of business.
Article 6
1. By way of derogation from Article 5, the competent authorities of the Member States 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 they deem 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 or bodies listed in Annex I, and dependent family members of such natural persons, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges;
(b)
intended exclusively for payment of reasonable professional fees or reimbursement 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; or
(d)
necessary for extraordinary expenses, provided that the relevant competent authority has notified the competent authorities of the other Member States and the Commission of the grounds on which it considers that a specific authorisation should be granted, at least two weeks prior to the authorisation;
2. The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraph 1.
Article 7
1. By way of derogation from Article 5, the competent authorities in the Member States may authorise the release of certain frozen funds or economic resources, if the following conditions are met:
(a)
the funds or economic resources are the subject of an arbitral decision rendered prior to the date on which the natural or legal person, entity or body referred to in Article 5 was listed in Annex I, or of a judicial or administrative decision rendered in an EU Member State, 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 such a 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 natural or legal person, entity or body listed in Annex I; and
(d)
recognition of the decision is not contrary to public policy in the Member State concerned.
2. The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraph 1.
Article 8
1. By way of derogation from Article 5, and provided that a payment by a natural or legal person, entity or body listed in Annex I is due under a contract or agreement that was concluded by, or an obligation that arose for, the natural or legal person, entity or body concerned before the date on which that natural or legal person, entity or body was included in Annex I, the competent authorities of the Member States may authorise, under such conditions as they deem appropriate, the release of certain frozen funds or economic resources, provided that the competent authority concerned has determined that:
(a)
the funds or economic resources shall be used for a payment by a natural or legal person, entity or body listed in Annex I; and
(b)
the payment is not in breach of Article 5(2).
2. The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraph 1.
Article 9
1. Article 5(2) shall not prevent the crediting of the frozen accounts by financial or credit institutions that receive funds transferred by third parties to the account of a listed natural or legal person, entity or body, provided that any additions to such accounts will also be frozen. The financial or credit institution shall inform the relevant competent authority about any such transaction without delay.
2. Article 5(2) shall not apply to the addition to frozen accounts of:
(a)
interest or other earnings on those accounts;
(b)
payments due under contracts, agreements or obligations that were concluded or arose before the date on which the natural or legal person, entity or body referred to in Article 5 has been included in Annex I; or
(c)
payments due under judicial, administrative or arbitral decisions rendered in an EU Member State or enforceable in the Member State concerned;
provided that any such interest, other earnings and payments are frozen in accordance with Article 5(1).
Article 10
1. Without prejudice to the applicable rules concerning reporting, confidentiality and professional secrecy, natural and legal persons, entities and bodies shall:
(a)
supply immediately any such information which would facilitate compliance with this Regulation, such as information on accounts and amounts frozen in accordance with Article 5, to the competent authority of the Member State where they are resident or located, and transmit any such information, directly or through the Member State, to the Commission; and
(b)
cooperate with the competent authority in any verification of this information.
2. Any additional information received directly by the Commission shall be made available to the Member States.
3. Any information provided or received in accordance with this Article shall be used only for the purposes for which it was provided or received.
Article 11
It shall be prohibited to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent the measures referred to in Articles 2 and 5.
Article 12
1. The freezing of funds and economic resources, or the refusal to make funds or economic resources available, carried out in good faith and on the basis that such action is in accordance with this Regulation, shall not give rise to liability of any kind on the part of the natural or legal person, or 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 a result of negligence.
2. Actions by natural or legal persons, entities or bodies shall not give rise to any liability of any kind on their part if they did not know, and had no reasonable cause to suspect, that their actions would infringe the measures set out in this Regulation.
Article 13
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 a claim for compensation or a claim under a guarantee, particularly 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 natural or legal persons, entities or bodies listed in Annex I;
(b)
any natural or legal person, entity or body acting through or on behalf of one of the persons, entities or bodies referred to in point (a).
2. In any proceedings for the enforcement of a claim, the onus of proving that satisfying the claim is not prohibited by paragraph 1 shall be on the natural or legal person, entity or body seeking the enforcement of that claim.
3. This Article is without prejudice to the right of the natural or legal persons, entities and bodies referred to in paragraph 1 to judicial review of the legality of the non-performance of contractual obligations in accordance with this Regulation.
Article 14
1. The Commission and Member States shall inform each other of the measures taken under this Regulation and share any other relevant information at their disposal in connection with this Regulation, in particular, information in respect of:
(a)
funds frozen under Article 5 and authorisations granted under Articles 6, 7 and 8;
(b)
violation and enforcement problems and judgments handed down by national courts.
2. The Member States shall immediately inform each other and the Commission of any other relevant information at their disposal which might affect the effective implementation of this Regulation.
Article 15
The Commission shall be empowered to amend Annex II on the basis of information supplied by Member States.
Article 16
1. Where the Council decides to subject a natural or legal person, entity or body to the measures referred to in Article 5, it shall amend Annex I accordingly.
2. The Council shall communicate its decision, including the grounds for listing, to the natural or legal person, entity or body referred to in paragraph 1, either directly, if the address is known, or through the publication of a notice, providing such natural or legal person, entity or body with an opportunity to present observations.
3. Where observations are submitted, or where substantial new evidence is presented, the Council shall review its decision and inform the natural or legal person, entity or body accordingly.
4. The list in Annex I shall be reviewed at regular intervals and at least every 12 months.
Article 17
1. Member States shall lay down the rules on penalties applicable to infringements of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.
2. Member States shall notify these rules to the Commission without delay after the entry into force of this Regulation and shall notify it of any subsequent amendment.
Article 18
1. Member States shall designate the competent authorities referred to in this Regulation and identify them on the websites listed in Annex II. Member States shall notify the Commission of any changes in the addresses of their websites listed in Annex II.
2. Member States shall notify the Commission of their competent authorities, including the contact details of those competent authorities, without delay after the entry into force of this Regulation, and shall notify it of any subsequent amendment.
3. Where this Regulation sets out a requirement to notify, inform or otherwise communicate with the Commission, the address and other contact details to be used for such communication shall be those indicated in Annex II.
Article 19
This Regulation shall apply:
(a)
within the territory of the Union, including its airspace;
(b)
on board of 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 is incorporated 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 part within the Union.
Article 20
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 10 July 2014.