COUNCIL REGULATION (EU) No 442/2011
of 9 May 2011
concerning restrictive measures in view of the situation in Syria
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 2011/273/CFSP of 9 May 2011 concerning restrictive measures against Syria (1), adopted in accordance with Chapter 2 of Title V of the Treaty on European Union,
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)
Decision 2011/273/CFSP provides for an arms embargo, a ban on internal repression equipment, and restrictions on the admission to the Union, and the freezing of funds and economic resources, of certain persons and entities responsible for the violent repression against the civilian population in Syria. Those persons, entities and bodies are listed in the Annex to that Decision.
(2)
Some of those measures fall within the scope of the Treaty on the Functioning of the European Union and regulatory action at the level of the Union is therefore necessary in order to implement them, in particular with a view to ensuring their uniform application by economic operators in all Member States.
(3)
This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union and, in particular, 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.
(4)
The power to amend the list in Annex II to this Regulation should be exercised by the Council, in view of the serious political situation in Syria, and to ensure consistency with the process for amending and reviewing the Annex to Decision 2011/273/CFSP.
(5)
The procedure for amending the lists in Annex II to this Regulation should include providing designated natural or legal persons, entities or bodies with the grounds for listing, so as to give them an opportunity to submit observations. Where observations are submitted, or substantial new evidence is presented, the Council should review its decision in light of those observations and inform the person, entity or body concerned accordingly.
(6)
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 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (2) and Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (3).
(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:
(a)
‘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;
(vii)
documents evidencing an interest in funds or financial resources;
(b)
‘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;
(c)
‘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;
(d)
‘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;
(e)
‘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, the transmission of working knowledge or skills or consulting services; including verbal forms of assistance;
(f)
‘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
1. It shall be prohibited:
(a)
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 Union, to any person, entity or body in Syria or for use in Syria;
(b)
to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent the prohibitions referred to in point (a).
2. Paragraph 1 shall not apply to protective clothing, including flak jackets and helmets, temporarily exported to Syria by United Nations (UN) personnel, personnel of the Union or its Member States, representatives of the media or humanitarian and development workers and associated persons exclusively for their personal use.
3. By way of derogation from paragraph 1, the competent authorities in the Member States as listed in Annex III may authorise the sale, supply, transfer or export of equipment which might be used for internal repression, under such conditions as they deem appropriate, if they determine that such equipment is intended solely for humanitarian or protective use.
Article 3
1. It shall be prohibited:
(a)
to provide, directly or indirectly, technical assistance related to the goods and technology listed in the Common Military List of the European Union (4) (Common Military List), or related to the provision, manufacture, maintenance and use of goods included in that list, to any person, entity or body in Syria or for use in Syria;
(b)
to provide, directly or indirectly, technical assistance or brokering services related to equipment which might be used for internal repression as listed in Annex I, to any person, entity or body in Syria or for use in Syria;
(c)
to provide, directly or indirectly, financing or financial assistance related to the goods and technology listed in the Common Military List or in Annex I, including in particular grants, loans and export credit insurance, for any sale, supply, transfer or export of such items, or for any provision of related technical assistance to any person, entity or body in Syria or for use in Syria;
(d)
to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent the prohibitions referred to in points (a) to (c).
2. By way of derogation from paragraph 1, the prohibitions refered to therein shall not apply to the provision of technical assistance, financing and financial assistance related to:
-
technical assistance intended solely for the support of the United Nations Disengagement Observer Force (UNDOF);
-
non-lethal military equipment, or equipment which might be used for internal repression, intended solely for humanitarian purposes or protective use or for institution building programmes of the UN and the Union, or for Union or UN crisis management operations; or
-
non-combat vehicles fitted with materials to provide ballistic protection, intended solely for the protective use of personnel of the Union and its Member States in Syria;
provided that such provision shall first have been approved by the competent authority of a Member State, as identified on the websites listed in Annex III.
Article 4
1. All funds and economic resources belonging to, owned, held or controlled by the natural or legal persons, entities and bodies 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 the natural or legal persons, entities or bodies listed in Annex II.
3. The participation, knowingly and intentionally, in activities the object or effect of which is, directly or indirectly, to circumvent the measures referred to in paragraphs 1 and 2 shall be prohibited.
Article 5
1. Annex II shall consist of a list of natural or legal persons, entities and bodies who, in accordance with Article 4(1) of Decision 2011/273/CFSP, have been identified by the Council as being persons and entities responsible for the violent repression against the civilian population in Syria, and natural or legal persons and entities associated with them.
2. Annex II shall include the grounds for the listing of listed persons, entities and bodies concerned.
3. Annex II shall also include, where available, information necessary to identify the natural or legal persons, entities and 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
By way of derogation from Article 4, the competent authorities in the Member States, as identified on the websites listed in Annex III, 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 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 the payment of reasonable professional fees or the reimbursement of incurred expenses associated with the provision of legal services;
(c)
intended exclusively for the 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 to the competent authorities of the other Member States and to the Commission at least two weeks before the authorisation the grounds on which it considers that a specific authorisation should be granted.
The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under this Article.
Article 7
By way of derogation from Article 4, the competent authorities in the Member States, as listed in Annex III, may authorise the release of certain frozen funds or economic resources, if the following conditions are met:
(a)
the funds or economic resources in question are the subject of a judicial, administrative or arbitral lien established prior to the date on which the person, entity or body referred to in Article 4 was included in Annex II, or of a judicial, administrative or arbitral judgment rendered prior to that date;
(b)
the funds or economic resources in question will be used exclusively to satisfy claims secured by such a lien or recognised as valid in such a judgment, within the limits set by applicable laws and regulations governing the rights of persons having such claims;
(c)
the lien or judgment is not for the benefit of a person, entity or body listed in Annex II; and
(d)
recognising the lien or judgment is not contrary to public policy in the Member State concerned.
The relevant Member State shall inform the other Member States and the Commission of any authorisation granted under this Article.
Article 8
1. Article 4(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 the account became subject to this Regulation,
provided that any such interest, other earnings and payments are frozen in accordance with Article 4(1).
2. Article 4(2) shall not prevent financial or credit institutions in the Union from crediting frozen accounts where they receive funds transferred 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.
Article 9
By way of derogation from Article 4, and provided that a payment by a person, entity or body listed in Annex II is due under a contract or agreement that was concluded by, or an obligation that arose for the person, entity or body concerned before the date on which that person, entity or body had been designated, the competent authorities of the Member States, as indicated on the websites listed in Annex III, may authorise, under such conditions as they deem appropriate, the release of certain frozen funds or economic resources, provided that the payment is not directly or indirectly received by a person or entity referred to in Article 4.
Article 10
1. 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 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. The prohibition set out in Article 4(2) shall not give rise to any liability of any kind on the part of the natural and legal persons, entities and bodies who made funds or economic resources available if they did not know, and had no reasonable cause to suspect, that their actions would infringe the prohibition in question.
Article 11
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 information which would facilitate compliance with this Regulation, such as accounts and amounts frozen in accordance with Article 4, to the competent authority in the Member State where they are resident or located, as indicated on the websites listed in Annex III, and shall transmit such information, either directly or through the Member States, to the Commission; and
(b)
cooperate with that competent authority 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.
Article 12
Member States and the Commission 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 13
The Commission shall be empowered to amend Annex III on the basis of information supplied by Member States.
Article 14
1. Where the Council decides to subject a natural or legal person, entity or body to the measures referred to in Article 4(1), it shall amend Annex II 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 II shall be reviewed at regular intervals and at least every 12 months.
Article 15
1. Member States shall lay down the rules on penalties applicable to infringements of the provisions 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 the Commission of those rules without delay after the entry into force of this Regulation and shall notify it of any subsequent amendment.
Article 16
Where there is, in this Regulation, 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 III.
Article 17
This Regulation shall apply:
(a)
within the territory of the Union, 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 Union who is a national of a Member State;
(d)
to any legal person, entity or body 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 18
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, 9 May 2011.