COUNCIL DECISION 2010/232/CFSP
of 26 April 2010
renewing restrictive measures against Burma/Myanmar
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on European Union, and in particular Article 29 thereof,
Whereas:
(1)
On 27 April 2006, the Council adopted Common Position 2006/318/CFSP renewing restrictive measures against Burma/Myanmar (1). Those measures replaced the previous measures, the first of which were adopted in 1996 in Common Position 96/635/CFSP (2).
(2)
Council Common Position 2009/351/CFSP (3) adopted on 27 April 2009 extended Common Position 2006/318/CFSP until 30 April 2010.
(3)
In view of the situation in Burma/Myanmar, in particular the lack of improvement in the human rights situation and the absence of substantive progress towards an inclusive democratisation process, notwithstanding the promulgation of a new electoral law and the announcement by the Government of Burma/Myanmar of multi-party elections to be held in 2010, the restrictive measures provided for in Common Position 2006/318/CFSP should be extended for a further period of 12 months.
(4)
The lists of persons and enterprises subject to the restrictive measures should be amended in order to take account of changes in the Government, the security forces, the State Peace and Development Council and the administration in Burma/Myanmar, as well as in the personal situations of the individuals concerned, and in order to update the list of enterprises that are owned or controlled by the regime in Burma/Myanmar or by persons associated with the regime.
(5)
Further action by the Union is needed in order to implement certain measures,
HAS ADOPTED THIS DECISION:
Article 1
1. The sale, supply, transfer or export of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment and spare parts for the aforementioned, as well as equipment which might be used for internal repression, to Burma/Myanmar by nationals of Member States or from the territories of Member States or using their flag vessels or aircraft shall be prohibited whether originating or not in their territories.
2. It shall be prohibited:
(a)
to provide technical assistance, brokering services and other 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 for the aforementioned, as well as equipment which might be used for internal repression, directly or indirectly to any natural or legal 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, as well as equipment which might be used for internal repression, or for the provision of related technical assistance, brokering and other services 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 to circumvent the prohibitions referred to in points (a) or (b).
Article 2
1. Article 1 shall not apply to:
(a)
the sale, supply, transfer or export of non-lethal military equipment, or of equipment which might be used for internal repression, intended solely for humanitarian or protective use, or for institution-building programmes of the UN and the EU, or of materiel intended for EU and UN crisis management operations;
(b)
the sale, supply, transfer or export of demining equipment and materiel for use in demining operations;
(c)
the provision of financing and financial assistance related to such equipment or to such programmes and operations;
(d)
the provision of technical assistance related to such equipment or to such programmes and operations,
on condition that such exports have been approved in advance by the relevant competent authority.
2. Article 1 shall not apply to protective clothing, including flak jackets and military helmets, temporarily exported to Burma/Myanmar by UN personnel, personnel of the EU or its Member States, representatives of the media and humanitarian and development workers and associated personnel for their personal use only.
Article 3
1. The sale, supply, transfer or export of relevant equipment and technology destined for enterprises in Burma/Myanmar that are engaged in the following industries, by nationals of Member States, or from the territories of Member States, or using vessels or aircraft under the jurisdiction of Member States shall be prohibited whether or not originating in their territories:
(a)
logging and timber processing;
(b)
mining of gold, tin, iron, copper, tungsten, silver, coal, lead, manganese, nickel and zinc;
(c)
mining and processing of precious and semi-precious stones, including diamonds, rubies, sapphires, jade and emeralds.
2. It shall be prohibited to:
(a)
provide technical assistance or training related to relevant equipment and technology destined for enterprises in Burma/Myanmar that are engaged in the industries referred to in paragraph 1;
(b)
provide financing or financial assistance for any sale, supply, transfer or export of relevant equipment and technology destined for the enterprises in Burma/Myanmar listed in Annex I, that are engaged in the industries referred to in paragraph 1, or for the provision of related technical assistance or training.
Article 4
The purchase, import or transport from Burma/Myanmar into the Union, of the following products shall be prohibited:
(a)
round logs, timber and timber products;
(b)
gold, tin, iron, copper, tungsten, silver, coal, lead, manganese, nickel and zinc;
(c)
precious and semi-precious stones, including diamonds, rubies, sapphires, jade and emeralds.
Article 5
The following shall be prohibited:
(a)
the granting of any financial loan or credit to the enterprises in Burma/Myanmar, as listed in Annex I, that are engaged in the industries referred to in Article 3(1);
(b)
the acquisition or extension of a participation in the enterprises in Burma/Myanmar, as listed in Annex I, that are engaged in the industries referred to in Article 3(1), including the acquisition in full of such enterprises and the acquisition of shares and securities of a participating nature;
(c)
the creation of any joint venture with the enterprises in Burma/Myanmar, as listed in Annex I, that are engaged in the industries referred to in Article 3(1) and with any subsidiary or affiliate under their control.
Article 6
1. The prohibition in Articles 3(1) and 4 shall be without prejudice to the execution of an obligation arising from contracts relating to goods which were in the course of shipment before 19 November 2007.
2. The prohibitions in Article 3 shall be without prejudice to the execution of an obligation arising from contracts concluded before 19 November 2007 and relating to investments made in Burma/Myanmar before the same date by enterprises established in Member States.
3. The prohibitions in Article 5(a) and (b) respectively:
(i)
shall be without prejudice to the execution of an obligation arising from contracts or agreements concluded before the date of listing of the enterprise concerned, as indicated in Annex I;
(ii)
shall not prevent the extension of a participation in the enterprises listed in Annex I, if such extension is provided for under an agreement concluded with the enterprise concerned before the date of its listing as indicated in Annex I.
Article 7
The participation, knowingly and intentionally, in activities the object or effect of which is, directly or indirectly, to circumvent the provisions of Articles 3, 4 and 5 shall be prohibited.
Article 8
Non-humanitarian aid or development programmes shall be suspended. Exceptions shall be made for projects and programmes in support of:
(a)
human rights, democracy, good governance, conflict prevention and building the capacity of civil society;
(b)
health and education, poverty alleviation and in particular the provision of basic needs and livelihoods for the poorest and most vulnerable populations;
(c)
environmental protection and, in particular, programmes addressing the problem of non-sustainable, excessive logging resulting in deforestation.
The projects and programmes should be implemented through UN agencies, non-governmental organisations, and through decentralised cooperation with local civilian administrations. In this context, the European Union will continue to engage with the government of Burma/Myanmar over its responsibility to make greater efforts to attain the UN Millennium Development Goals.
Projects and programmes should, as far as possible, be defined, monitored, run and evaluated in consultation with civil society and all democratic groups, including the National League for Democracy.
Article 9
1. Member States shall take the necessary measures to prevent the entry into, or transit through, their territories of:
(a)
senior members of the State Peace and Development Council (SPDC), Burmese authorities in the tourism sector, senior members of the military, the Government or the security forces who formulate, implement or benefit from policies that impede Burma/Myanmar's transition to democracy, and members of their families, being the natural persons listed in Annex II;
(b)
senior serving members of the Burmese military and members of their families, being the natural persons listed in Annex II.
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 cases where a Member State is bound by an obligation of international law, namely:
(a)
as a host country of an international intergovernmental organisation;
(b)
as a host country to an international conference convened by, or under the auspices of, the United Nations;
(c)
under a multilateral agreement conferring privileges and immunities; or
(d)
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 State is 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, including those promoted 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 democracy, human rights and the rule of law in Burma/Myanmar.
7. A Member State wishing to grant exemptions referred to in paragraph 6 shall notify 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 raise an objection, the Council, acting by qualified majority, may decide to grant the proposed exemption.
8. In cases where pursuant to paragraphs 3, 4, 6 and 7, a Member State authorises the entry into, or transit through, its territory of persons listed in Annex II, the authorisation shall be limited to the purpose for which it is given and to the persons concerned thereby.
Article 10
1. All funds and economic resources belonging to, owned, held or controlled by the individual members of the Government of Burma/Myanmar and belonging to, owned, held or controlled by the natural or legal persons, entities or bodies associated with them as listed in Annex II 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 II.
3. The competent authority 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 persons listed in Annex II and their dependent family members, 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 competent authority has notified the grounds on which it considers that a specific authorisation should be granted, to the other competent authorities and the Commission at least two weeks before the authorisation.
4. Paragraph 2 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 or arose before 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 paragraph 1.
5. The following shall be prohibited:
(a)
the granting of any financial loan or credit to enterprises that are owned or controlled by the regime or by persons or entities associated with the regime, as listed in Annex III, or the acquisition of bonds, certificates of deposit, warrants or debentures, issued by these enterprises;
(b)
the acquisition or extension of a participation in enterprises that are owned or controlled by the regime or by persons or entities associated with the regime, as listed in Annex III, including the acquisition in full of such enterprises and the acquisition of shares and securities of a participating nature;
(c)
the creation of any joint venture with the enterprises as listed in Annex III, and with any subsidiary or affiliate under their control.
6. The provisions of paragraph 5(a) shall be without prejudice to the execution of an obligation arising from contracts or agreements concluded with the enterprise concerned before the date of its listing, as indicated in Annex III.
7. The prohibition in paragraph 5(b) shall not prevent the extension of a participation in enterprises as listed in Annex III, if such extension is provided for under an agreement concluded before the date of listing of the enterprise concerned, as indicated in Annex III.
Article 11
High-level bilateral governmental (Ministers and Officials at the level of Political Director and above) visits to Burma/Myanmar shall remain suspended. The Council may, in exceptional circumstances, decide to grant exceptions to this rule.
Article 12
Member States shall not permit the attachment of military personnel to the diplomatic representations of Burma/Myanmar in Member States. All military personnel attached to diplomatic representations of the Member States in Burma/Myanmar shall remain withdrawn.
Article 13
The Council, acting upon a proposal by a Member State or the High Representative of the Union for Foreign Affairs and Security Policy, shall adopt modifications to the list set out in Annex II as required.
Article 14
This Decision shall be kept under constant review. It shall be renewed, or amended as appropriate, in particular as regards the enterprises listed in Annexes I and III, if the Council deems that its objectives have not been met.
Article 15
This Decision shall enter into force on the date of its adoption.
It shall apply until 30 April 2011.
Done at Brussels, 26 April 2010.