Council Regulation (EC) No 881/2002
of 27 May 2002
imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 60, 301 and 308 thereof,
Having regard to Common Position 2002/402/CFSP concerning restrictive measures against Usama bin Laden, members of the Al-Qaida organisation and the Taliban and other individuals, groups, undertakings and entities associated with them and repealing Common Positions 96/746/CFSP, 1999/727/CFSP, 2001/154/CFSP and 2001/771/CFSP(1),
Having regard to the proposal from the Commission(2),
Having regard to the opinion of the European Parliament(3),
Whereas:
(1) On 16 January 2002, the Security Council of the United Nations adopted Resolution 1390(2002) determining that the Taliban had failed to respond to its demands made in a number of previous resolutions and condemning the Taliban for allowing Afghanistan to be used as a base for terrorist training and activities and also condemning the Al-Qaida network and other associated terrorist groups for their terrorist acts and destruction of property.
(2) The Security Council decided, inter alia, that the flight ban and certain export restrictions imposed on Afghanistan further to its Resolutions 1267(1999) and 1333(2000) should be repealed and that the scope of the freezing of funds and the prohibition on funds being made available, which were imposed further to these Resolutions, should be adjusted. It also decided that a prohibition on providing the Taliban and the Al-Qaida organisation with certain services related to military activities should be applied. In accordance with paragraph 3 of Resolution 1390(2002), those measures will be reviewed by the Security Council 12 months after adoption of the resolution and at the end of this period the Security Council will either allow the measures to continue or decide to improve them.
(3) In this regard, the Security Council recalled the obligation to implement in full its Resolution 1373(2001) with regard to any member of the Taliban and the Al-Qaida organisation, but also with regard to those who are associated with them and have participated in the financing, planning, facilitation, preparation or perpetration of terrorist acts.
(4) These measures fall under the scope of the Treaty and, therefore, notably with a view to avoiding distortion of competition, Community legislation is necessary to implement the relevant decisions of the Security Council as far as the territory of the Community is concerned. For the purpose of this Regulation, the territory of the Community is deemed to encompass the territories of the Member States to which the Treaty is applicable, under the conditions laid down in that Treaty.
(5) In order to create maximum legal certainty within the Community, the names and other relevant data with regard to natural or legal persons, groups or entities whose funds should be frozen further to a designation by the UN authorities, should be made publicly known and a procedure should be established within the Community to amend these lists.
(6) The competent authorities of the Member States should, where necessary, be empowered to ensure compliance with the provisions of this Regulation.
(7) UN Security Council Resolution 1267(1999) provides that the relevant UN Sanctions Committee may grant exemptions from the freezing of funds on grounds of humanitarian need. Therefore, provision needs to be made to render such exemptions applicable throughout the Community.
(8) For reasons of expediency, the Commission should be empowered to amend the Annexes to this Regulation on the basis of pertinent notification or information by the UN Security Council, the relevant UN Sanctions Committee and Member States, as appropriate.
(9) The Commission and Member States should inform each other of the measures taken under this Regulation and of other relevant information at their disposal in connection with this Regulation, and cooperate with the relevant UN Sanctions Committee, in particular by supplying it with information.
(10) Member States should lay down rules on sanctions applicable to infringements of the provisions of this Regulation and ensure that they are implemented. Those sanctions must be effective, proportionate and dissuasive.
(11) Taking into account that the freezing of funds is to be adjusted, it is necessary to ensure that sanctions for breaches of this Regulation can be imposed as of the date of entry into force of this Regulation.
(12) In view of the measures imposed under Resolution 1390(2002) it is necessary to adjust the measures imposed in the Community by repealing Council Regulation (EC) No 467/2001(4) and adopting a new Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
For the purpose of this Regulation, the following definitions shall apply:
1. "funds" means financial assets and economic benefits of every kind, including but not limited to cash, cheques, claims on money, drafts, money orders and other payment instruments; deposits with financial institutions or other entities, balances on accounts, debts and debt obligations; publicly and privately traded securities and debt instruments, including stocks and shares, certificates presenting securities, bonds, notes, warrants, debentures, derivatives contracts; interest, dividends or other income on or value accruing from or generated by assets; credit, right of set-off, guarantees, performance bonds or other financial commitments; letters of credit, bills of lading, bills of sale; documents evidencing an interest in funds or financial resources, and any other instrument of export-financing;
2. "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;
3. "freezing of funds" means preventing any move, transfer, alteration, use of 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 use of the funds, including portfolio management;
4. "freezing of economic resources" means preventing their use to obtain funds, goods or services in any way, including, but not limited to, by selling, hiring or mortgaging them.
Article 2
1. All funds and economic resources belonging to, or owned or held by, a natural or legal person, group or entity designated by the Sanctions Committee and listed in Annex I shall be frozen.
2. No funds shall be made available, directly or indirectly, to, or for the benefit of, a natural or legal person, group or entity designated by the Sanctions Committee and listed in Annex I.
3. No economic resources shall be made available, directly or indirectly, to, or for the benefit of, a natural or legal person, group or entity designated by the Sanctions Committee and listed in Annex I, so as to enable that person, group or entity to obtain funds, goods or services.
Article 3
Without prejudice to the powers of Member States in the exercise of their public authority, it shall be prohibited to grant, sell, supply or transfer, directly or indirectly, technical advice, assistance or training related to military activities, including in particular training and assistance related to the manufacture, maintenance and use of arms and related materiel of all types, to any natural or legal person, group or entity designated by the Sanctions Committee and listed in Annex I.
Article 4
1. The participation, knowingly and intentionally, in activities, the object or effect of which is, directly or indirectly, to circumvent Article 2 or to promote the transactions referred to in Article 3, shall be prohibited.
2. Any information that the provisions of this Regulation are being, or have been, circumvented shall be notified to the competent authorities of the Member States and, directly or through these competent authorities, to the Commission.
Article 5
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) provide immediately any information which would facilitate compliance with this Regulation, such as accounts and amounts frozen in accordance with Article 2, to the competent authorities of the Member States listed in Annex II where they are resident or located, and, directly or through these competent authorities, to the Commission.
In particular, available information in respect of funds, financial assets or economic resources owned or controlled by persons designated by the Sanctions Committee and listed in Annex 1 during the period of six months before the entry into force of this Regulation shall be provided;
(b) cooperate with the competent authorities listed in Annex II in any verification of this information.
2. Any information provided or received in accordance with this Article shall be used only for the purposes for which it was provided or received.
3. Any additional information directly received by the Commission shall be made available to the competent authorities of the Member States concerned.
Article 6
The freezing of funds, other financial assets and economic resources, in good faith that such action is in accordance with this Regulation, shall not involve the natural or legal person, group or entity implementing it, or its directors or employees, in liability of any kind unless it is proved that the freezing was due to negligence.
Article 7
1. The Commission shall be empowered to:
- amend or supplement Annex I on the basis of determinations made by either the United Nations Security Council or the Sanctions Committee, and
- amend Annex II on the basis of information supplied by Member States.
2. Without prejudice to the rights and obligations of the Member States under the Charter of the United Nations, the Commission shall maintain all necessary contacts with the Sanctions Committee for the purpose of the effective implementation of this Regulation.
Article 8
The Commission and the Member States shall immediately inform each other of the measures taken under this Regulation and shall supply each other with relevant information at their disposal in connection with this Regulation, in particular information received in accordance with Article 5 and in respect of violation and enforcement problems and judgements handed down by national courts.
Article 9
This Regulation shall apply notwithstanding any rights conferred or obligations imposed by any international agreement signed or any contract entered into or any licence or permit granted before the entry into force of this Regulation.
Article 10
1. Each Member State shall determine the sanctions to be imposed where the provisions of this Regulation are infringed. Such sanctions shall be effective, proportionate and dissuasive.
2. Pending the adoption, where necessary, of any legislation to this end, the sanctions to be imposed where the provisions of this Regulation are infringed, shall be those determined by the Member States in accordance with Article 13 of Regulation (EC) No 467/2001.
3. Each Member State shall be responsible for bringing proceedings against any natural or legal person, group or entity under its jurisdiction, in cases of violation of any of the prohibitions laid down in this Regulation by any such person, group or entity.
Article 11
This Regulation shall apply
- within the territory of the Community, including its airspace,
- on board any aircraft or any vessel under the jurisdiction of a Member State,
- to any person elsewhere who is a national of a Member State,
- to any legal person, group or entity which is incorporated or constituted under the law of a Member State,
- to any legal person, group or entity doing business within the Community.
Article 12
Regulation (EC) No 467/2001 is hereby repealed.
Article 13
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 May 2002.