COUNCIL REGULATION (EC) No 798/2004
of 26 April 2004
renewing the restrictive measures in respect of Burma/Myanmar and repealing Regulation (EC) No 1081/2000
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 60 and 301 thereof,
Having regard to Council Common Position 2004/423/CFSP of 26 April 2004 renewing restrictive measures in respect of Burma/Myanmar (1),
Having regard to the proposal from the Commission,
Whereas:
(1)
On 28 October 1996, the Council, concerned at the absence of progress towards democratisation and at the continuing violation of human rights in Burma/Myanmar, imposed certain restrictive measures against Burma/Myanmar by Common Position 1996/653/CFSP (2). In view of continued severe and systematic violations of human rights by the Burmese authorities, and in particular continuing and intensified repression of civil and political rights, and the failure of those authorities to take steps towards democracy and reconciliation, the restrictive measures against Burma/Myanmar were subsequently extended several times, most recently by Common Position 2003/297/CFSP (3) on Burma/Myanmar, which is due to expire on 29 April 2004. Some of the restrictive measures imposed against Burma/Myanmar were implemented at Community level by Council Regulation (EC) No 1081/2000 (4).
(2)
In view of the current political situation in Burma/Myanmar, as witnessed by the failure of the military authorities to enter into substantive discussions with the democratic movement concerning a process leading to national reconciliation, respect for human rights and democracy, the continuing detention of Daw Aung San Suu Kyi and other members of the National League for Democracy and the continuing serious violations of human rights, including the failure to take action to eradicate the use of forced labour in accordance with the recommendations of the International Labour Organisation's High-Level Team report of 2001, Common Position 2004/423/CFSP stipulates that the restrictive measures against the military regime in Burma/Myanmar and those who benefit most from its misrule and those who actively frustrate the process of national reconciliation, respect for human rights and democracy should be maintained.
(3)
The restrictive measures provided for by Common Position 2004/423/CFSP include inter alia a ban on technical assistance, financing and financial assistance related to military activities, a ban on the export of equipment which might be used for internal repression, and the freezing of funds and economic resources of members of the Government of Burma/Myanmar and of any natural or legal persons, entities or bodies associated with them.
(4)
These measures fall within the scope of the Treaty and, therefore, in order to avoid any distortion of competition, Community legislation is necessary to implement them as far as the Community is concerned. For the purpose of this Regulation, the territory of the Community should be deemed to encompass the territories of the Member States to which the Treaty is applicable, under the conditions laid down in that Treaty.
(5)
It is desirable to align with recent practice the provisions concerning the ban on technical assistance, financing and financial assistance related to military activities, and those concerning the freezing of funds and economic resources.
(6)
For the sake of clarity, a new text containing all the relevant provisions as amended should be adopted, replacing Regulation (EC) No 1081/2000, which should be repealed.
(7)
In order to ensure that the measures provided for in this Regulation are effective, this Regulation should enter into force on the day of its publication,
HAS ADOPTED THIS REGULATION:
Article 1
For the purposes of this Regulation, the following definitions shall apply:
1.
‘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; technical assistance includes verbal forms of assistance;
2.
‘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 and shares, certificates representing securities, bonds, notes, warrants, debentures and derivatives 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;
(h)
any other instrument of export-financing;
3.
‘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;
4.
‘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;
5.
‘freezing of economic resources’ means preventing their use to obtain funds, goods or services in any way, including, but not limited to, the selling, hiring or mortgaging of them.
Article 2
It shall be prohibited:
(a)
to grant, sell, supply or transfer technical assistance 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 for the aforementioned, directly or indirectly to any person, entity or body in, or for use in Burma/Myanmar;
(b)
to provide financing or financial assistance related to military activities, including in particular grants, loans and export credit insurance, for any sale, supply, transfer or export of arms and related materiel, directly or indirectly to any person, entity or body in, or for use in Burma/Myanmar;
(c)
to participate, knowingly and intentionally, in activities the object or effect of which is, directly or indirectly, to promote the transactions referred to at points (a) or (b).
Article 3
It shall be prohibited:
(a)
knowingly and intentionally, 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 Community, to any natural or legal person, entity or body in, or for use in Burma/Myanmar;
(b)
to grant, sell, supply or transfer 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 Burma/Myanmar;
(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 Burma/Myanmar;
(d)
to participate, knowingly and intentionally, in activities the object or effect of which is, directly or indirectly, to promote the transactions referred to in points (a), (b) or (c).
Article 4
1. By way of derogation from Articles 2 and 3, the competent authorities of Member States as listed in Annex II may authorise:
(a)
the provision of financing and financial assistance and technical assistance related to:
(i)
non-lethal military equipment intended solely for humanitarian or protective use, or for institution-building programmes of the United Nations, the European Union and the Community;
(ii)
materiel intended for European Union and United Nations crisis-management operations;
(b)
the sale, supply, transfer or export of equipment listed in Annex I intended solely for humanitarian or protective use, and the provision of financial assistance, financing and technical assistance related to these transactions.
2. Authorisations referred to in paragraph 1 may only be granted prior to the activity for which they are requested.
Article 5
Articles 2 and 3 shall not apply to protective clothing, including flak jackets and military helmets, temporarily exported to Burma/Myanmar by United Nations personnel, personnel of the European Union, the Community or its Member States, representatives of the media and humanitarian and development workers and associated personnel for their personal use only.
Article 6
1. All funds and economic resources belonging to the individual members of the Government of Burma/Myanmar and to the natural or legal persons, entities or bodies associated with them as listed in Annex III shall be frozen.
2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of the natural or legal persons, entities or bodies listed in Annex III.
3. The participation, knowingly and intentionally, in activities the object or effect of which is, directly or indirectly, to circumvent the measures referred to at 1 and 2 shall be prohibited.
Article 7
1. By way of derogation from Article 6(1), the competent authorities of the Member States as listed in Annex II may authorise the release of certain frozen funds or economic resources or the making available of certain frozen funds or economic resources, under such conditions as they deem appropriate, after having determined that the funds or economic resources concerned are:
(a)
necessary for basic expenses, 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 and 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;
(d)
necessary for extraordinary expenses, provided that the relevant competent authority has notified the grounds on which it considers that a specific authorisation should be granted, to all other competent authorities and the Commission at least two weeks prior to the authorisation.
The relevant competent authority shall inform the competent authorities of the other Member States and the Commission of any authorisation granted under this paragraph.
2. Article 6(2) shall not apply to the addition to frozen accounts of:
(i)
interest or other earnings on those accounts; or
(ii)
payments due under contracts, agreements or obligations that were concluded or arose prior to the date on which those accounts became subject to restrictive measures,
provided that any such interest, other earnings and payments continue to be subject to Article 6(1).
Article 8
Article 6(2) shall not prevent the crediting of the frozen accounts by financial institutions that receive funds transferred by third parties to the account of the listed person or entity, provided that any additions to such accounts will also be frozen. The financial institution shall inform the competent authorities about such transactions without delay.
Article 9
1. Without prejudice to the applicable rules concerning reporting, confidentiality and professional secrecy and to the provisions of Article 284 of the Treaty, natural and legal persons, entities and bodies shall:
(a)
supply immediately any information which would facilitate compliance with this Regulation, such as accounts and amounts frozen in accordance with Article 6, to the competent authorities of the Member States listed in Annex II where they are resident or located, and shall transmit such information, directly or through these competent authorities, to the Commission;
(b)
cooperate with the competent authorities listed in Annex II in any verification of this information.
2. Any additional information directly received by the Commission shall be made available to the competent authorities of the Member State concerned.
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 10
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 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 implementing it, or its directors or employees, unless it is proved that the funds and economic resources were frozen as result of negligence.
Article 11
The Commission and Member States shall immediately inform each other of the measures taken under this Regulation and shall supply each other with any other relevant information at their disposal in connection with this Regulation, in particular information in respect of violation and enforcement problems and judgments handed down by national courts.
Article 12
The Commission shall be empowered to:
(a)
amend Annex II on the basis of information supplied by Member States,
(b)
amend Annex III on the basis of decisions taken in respect of the Annex to Common Position 2004/423/CFSP.
Article 13
The Member States shall lay down the rules on sanctions applicable to infringements of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The sanctions provided for must be effective, proportionate and dissuasive.
The Member States shall notify those rules to the Commission without delay after the entry into force of this Regulation and shall notify it of any subsequent amendment.
Article 14
This Regulation shall apply:
(a)
within the territory of the Community, 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 Community who is a national of a Member State;
(d)
to any legal person, group or entity which is incorporated or constituted under the law of a Member State;
(e)
to any legal person, group or entity doing business within the Community.
Article 15
Regulation (EC) No 1081/2000 is hereby repealed.
Article 16
This Regulation shall take enter into force on the day of its publication in the Official Journal of the European Union.
It shall apply from 30 April 2004.
Done at Luxembourg, 26 April 2004.