COUNCIL DECISION 2010/800/CFSP
of 22 December 2010
concerning restrictive measures against the Democratic People's Republic of Korea and repealing Common Position 2006/795/CFSP
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on European Union, and in particular Article 29 thereof,
Whereas:
(1)
On 20 November 2006, the Council adopted Common Position 2006/795/CFSP concerning restrictive measures against the Democratic People's Republic of Korea (1) (the ‘DPRK’) which implemented United Nations Security Council Resolution (‘UNSCR’) 1718 (2006).
(2)
On 27 July 2009, the Council adopted Common Position 2009/573/CFSP (2) which amended Common Position 2006/795/CFSP and implemented UNSCR 1874 (2009).
(3)
On 22 December 2009, the Council adopted Decision 2009/1002/CFSP (3) which amended Common Position 2006/795/CFSP.
(4)
In accordance with Article 7(2) of Common Position 2006/795/CFSP, the Council has carried out a complete review of the lists as set out in Annexes II and III to that Common Position, of persons to whom and entities to which Articles 3(1)(b) and (c) and 4(1)(b) and (c) thereof applied. The Council has concluded that the persons and entities concerned should continue to be subject to restrictive measures.
(5)
The Council has identified additional persons and entities that should be subject to restrictive measures.
(6)
The procedure for amending Annexes I and II to this Decision should include providing to designated persons and entities the grounds for listing so as to give them an opportunity to present observations. Where observations are submitted or where substantial new evidence is presented, the Council should review its decision in the light of those observations and inform the person or entity concerned accordingly.
(7)
This Decision 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, the right to property and the right to the protection of personal data. This Decision should be applied in accordance with those rights and principles.
(8)
This Decision also fully respects the obligations of Member States under the Charter of the United Nations and the legally binding nature of Security Council Resolutions.
(9)
Common Position 2006/795/CFSP should be repealed and replaced by this Decision.
(10)
The Union implementing measures are set out in Council Regulation (EC) No 329/2007 of 27 March 2007 concerning restrictive measures against the Democratic People's Republic of Korea (4),
HAS ADOPTED THIS DECISION:
Article 1
1. The direct or indirect supply, sale or transfer of the following items and technology, including software, to the DPRK by nationals of Member States or through or from the territories of Member States, or using the flag vessels or aircraft of Member States, shall be prohibited, whether or not originating in the territories of the Member States:
(a)
arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment and spare parts for the aforementioned, with the exception of non-combat vehicles which have been manufactured or fitted with materials to provide ballistic protection, intended solely for protective use of personnel of the Union and its Member States in the DPRK;
(b)
all items, materials, equipment, goods and technology as determined by the Security Council or the Committee established pursuant to paragraph 12 of UNSCR 1718 (2006) (the ‘Sanctions Committee’) in accordance with paragraph 8(a)(ii) of UNSCR 1718 (2006), which could contribute to the DPRK's nuclear-related, ballistic missile-related or other weapons of mass destruction-related programmes;
(c)
certain other items, materials, equipment, goods and technology which could contribute to the DPRK's nuclear-related, ballistic missile-related or other weapons of mass destruction-related programmes or which could contribute to its military activities, which shall include all dual-use goods and technology listed in Annex I to Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items (5). The Union shall take the necessary measures in order to determine the relevant items to be covered by this provision.
2. It shall also be prohibited to:
(a)
provide technical training, advice, services, assistance or brokering services, related to items and technology referred to in paragraph 1 or to the provision, manufacture, maintenance and use of those items, directly or indirectly to any person, entity or body in, or for use in, the DPRK;
(b)
provide financing or financial assistance related to items and technology referred to in paragraph 1, including, in particular, grants, loans and export credit insurance, for any sale, supply, transfer or export of these items and technology, or for the provision of related technical training, advice, services, assistance, or brokering services, directly or indirectly to any person, entity or body in, or for use in, the DPRK;
(c)
to participate, knowingly or intentionally, in activities the object or effect of which is to circumvent the prohibition referred to in points (a) and (b).
3. The procurement from the DPRK by nationals of Member States, or using the flag vessels or aircraft of Member States, of items or technology referred to in paragraph 1, as well as the provision to nationals of Member States by the DPRK of technical training, advice, services, assistance, financing and financial assistance referred to in paragraph 2, shall also be prohibited, whether or not originating in the territory of the DPRK.
Article 2
1. Member States shall not enter into new commitments for grants, financial assistance or concessional loans to the DPRK, including through their participation in international financial institutions, except for humanitarian and developmental purposes directly addressing the need of the civilian population or the promotion of denuclearisation. Member States shall also exercise vigilance with a view to reducing current commitments and, if possible, putting an end to them.
2. Member States shall not provide public financial support for trade with the DPRK, including the granting of export credits, guarantees or insurance, to their nationals or entities involved in such trade, where such financial support could contribute to the DPRK's nuclear-related, ballistic missile-related or other weapons of mass destruction-related programmes or activities.
Article 3
The direct or indirect supply, sale or transfer of luxury goods to the DPRK by nationals of Member States or through or from the territories of Member States, or using the flag vessels or aircraft of Member States, shall be prohibited whether originating or not in the territories of Member States.
Article 4
1. Member States shall take the necessary measures to prevent the entry into, or transit through, their territories of:
(a)
the persons designated by the Sanctions Committee or by the Security Council as being responsible for, including through supporting or promoting, the DPRK's policies in relation to its nuclear-related, ballistic missile-related or other weapons of mass destruction-related programmes, together with their family members, as listed in Annex I;
(b)
the persons not covered by Annex I who are responsible for, including through supporting or promoting, the DPRK's nuclear-related, ballistic missile-related or other weapons of mass destruction-related programmes, as listed in Annex II;
(c)
the persons not covered by Annex I or Annex II who provide financial services or the transfer to, through, or from the territory of Member States, or involving nationals of Member States or entities organised under their laws, or persons or financial institutions in their territory, of any financial or other assets or resources that could contribute to the DPRK's nuclear-related, ballistic missile-related or other weapons of mass destruction-related programmes, as listed in Annex III.
2. Paragraph 1(a) shall not apply where the Sanctions Committee determines on a case-by-case basis that such travel is justified on the grounds of humanitarian need, including religious obligations, or where the Sanctions Committee concludes that an exemption would otherwise further the objectives of UNSCR 1718 (2006) or UNSCR 1874 (2009).
3. Paragraph 1 shall not oblige a Member State to refuse its own nationals entry into its territory.
4. 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;
(d)
under the 1929 Treaty of Conciliation (Lateran pact) concluded by the Holy See (State of the Vatican City) and Italy.
5. Paragraph 4 shall also be considered as applying in cases where a Member State is host country of the Organisation for Security and Cooperation in Europe (OSCE).
6. The Council shall be duly informed in all cases where a Member State grants an exemption pursuant to paragraphs 4 or 5.
7. Member States may grant exemptions from the measures imposed in paragraph 1(b) and (c) where travel is justified on the grounds of urgent humanitarian need, or on grounds of attending intergovernmental meetings, including those promoted by the 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 the DPRK.
8. A Member State wishing to grant exemptions referred to in paragraph 7 shall notify the Council thereof in writing. The exemption shall 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. Should one or more of the Council Members raise an objection, the Council, acting by a qualified majority, may decide to grant the proposed exemption.
9. In cases where, pursuant to paragraphs 4, 5 and 7, a Member State authorises the entry into, or transit through, its territory of persons listed in Annexes I, II or III, the authorisation shall be limited to the purpose for which it is given and to the persons concerned thereby.
Article 5
1. All funds and economic resources belonging to, owned, held or controlled, directly or indirectly, by:
(a)
the persons and entities designated by the Sanctions Committee or by the Security Council as being engaged in or providing support for, including through illicit means, the DPRK's nuclear-related, ballistic missiles-related or other weapons of mass destruction-related programmes, as listed in Annex I;
(b)
the persons and entities not covered by Annex I that are responsible for the DPRK's nuclear-related, ballistic missile-related or other weapons of mass destruction-related programmes or persons or entities acting on their behalf or at their direction, or entities owned or controlled by them, as listed in Annex II;
(c)
the persons and entities not covered by Annex I or Annex II that provide financial services or the transfer to, through, or from the territory of Member States, or involving nationals of Member States or entities organised under their laws, or persons or financial institutions in their territory, of any financial or other assets or resources that could contribute to the DPRK's nuclear-related, ballistic missile-related or other weapons of mass destruction-related programmes, or persons or entities acting on their behalf or at their direction, or entities owned or controlled by 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 persons and entities referred to in paragraph 1.
3. Exemptions may be made for funds and economic resources which are:
(a)
necessary to satisfy basic needs, including payment 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 and the reimbursement of incurred expenses associated with the provision of legal services; or
(c)
intended exclusively for the payment of fees or service charges, in accordance with national laws, for the routine holding or maintenance of frozen funds and economic resources,
after notification by the Member State concerned to the Sanctions Committee, for persons and entities listed in Annex I, of the intention to authorise, where appropriate, access to such funds and economic resources and in the absence of a negative decision by the Sanctions Committee within five working days of such notification.
4. Exemptions may also be made for funds and economic resources which are:
(a)
necessary for extraordinary expenses, after notification by the Member State concerned to and approval by the Sanctions Committee for persons and entities listed in Annex I; or
(b)
the subject of a judicial, administrative or arbitral lien or judgment, in which case the funds and economic resources may be used to satisfy that lien or judgment, provided that the lien or judgment was entered prior to the date on which the person or entity referred to in paragraph 1 was designated by the Sanctions Committee, the Security Council or by the Council, and is not for the benefit of a person or entity referred to in paragraph 1, after notification by the Member State concerned to the Sanctions Committee for persons and entities listed in Annex I.
5. 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 prior to 14 October 2006,
provided that any such interest, other earnings and payments continue to be subject to paragraph 1.
Article 6
1. In order to prevent the provision of financial services or the transfer to, through, or from the territory of Member States, or to or by nationals of Member States or entities organised under their laws, or persons or financial institutions within their jurisdiction, of any financial or other assets or resources that could contribute to the DPRK's nuclear-related, ballistic missile-related or other weapons of mass destruction-related programmes or activities, Member States shall exercise enhanced monitoring of the activities of financial institutions within their jurisdiction with:
(a)
banks domiciled in the DPRK;
(b)
branches and subsidiaries within the jurisdiction of the Member States of banks domiciled in the DPRK, as listed in Annex IV;
(c)
branches and subsidiaries outside the jurisdiction of the Member States of banks domiciled in the DPRK, as listed in Annex V; and
(d)
financial entities that are neither domiciled in the DPRK nor within the jurisdiction of the Member States but are controlled by persons and entities domiciled in the DPRK, as listed in Annex V,
in order to avoid such activities contributing to the DPRK's nuclear-related, ballistic missile-related or other weapons of mass destruction-related programmes or activities.
2. For the above purpose, financial institutions shall be required, in their activities with banks and financial entities set out in paragraph 1, to:
(a)
exercise continuous monitoring over account activity, including through their programmes on customer due diligence and under their obligations relating to money-laundering and financing of terrorism;
(b)
require that all information fields of payment instructions which relate to the originator and beneficiary of the transaction in question be completed, and if that information is not supplied, refuse the transaction;
(c)
maintain all records of transactions for a period of five years and make them available to national authorities on request;
(d)
if they suspect or have reasonable grounds to suspect that funds could contribute to the DPRK's nuclear-related, ballistic missile-related or other weapons of mass destruction-related programmes or activities, promptly report their suspicions to the Financial Intelligence Unit (FIU) or another competent authority designated by the Member State concerned. The FIU or such other competent authority shall have access, directly or indirectly, on a timely basis to the financial, administrative and law enforcement information that it requires to undertake this function properly, including the analysis of suspicious transaction reports.
Article 7
1. Member States shall inspect, in accordance with their national authorities and legislation and consistent with international law, all cargo to and from the DPRK in their territory, including at their airports and seaports, if they have information that provides reasonable grounds to believe that the cargo contains items whose supply, sale, transfer or export is prohibited under this Decision.
2. Member States shall inspect vessels, with the consent of the flag State, on the high seas, if they have information that provides reasonable grounds to believe that the cargo of such vessels contains items whose supply, sale, transfer or export is prohibited under this Decision.
3. Member States shall cooperate, in accordance with their national legislation, with inspections pursuant to paragraphs 1 and 2.
4. Aircrafts and vessels transporting cargo to and from the DPRK shall be subject to the requirement of additional pre-arrival or pre-departure information for all goods brought into or out of a Member State.
5. In cases where inspection referred to in paragraphs 1 and 2 is undertaken, Member States shall seize and dispose of items whose supply, sale, transfer or export is prohibited under this Decision in accordance with paragraph 14 of UNSCR 1874 (2009).
6. The provision by nationals of Member States or from the territories of Member States of bunkering or ship supply services, or other servicing of vessels, to DPRK vessels shall be prohibited if they have information that provides reasonable grounds to believe that the vessels carry items whose supply, sale, transfer or export is prohibited under this Decision unless provision of such services is necessary for humanitarian purposes or until the cargo has been inspected, and seized and disposed of if necessary, in accordance with paragraphs 1, 2 and 4.
Article 8
Member States shall take the necessary measures to exercise vigilance and prevent specialised teaching or training of DPRK nationals, within their territories or by their nationals, of disciplines which would contribute to the DPRK's proliferation-sensitive nuclear activities and the development of nuclear weapon delivery systems.
Article 9
1. The Council shall adopt modifications to Annex I on the basis of the determinations made by the Security Council or by the Sanctions Committee.
2. The Council, acting by unanimity on a proposal from Member States or the High Representative of the Union for Foreign Affairs and Security Policy, shall establish the lists in Annexes II and III and adopt modifications thereto.
Article 10
1. Where the Security Council or the Sanctions Committee lists a person or entity, the Council shall include such person or entity in Annex I.
2. Where the Council decides to subject a person or entity to the measures referred to in Articles 4(1)(b) and (c) and 5(1)(b) and (c), it shall amend Annex II accordingly.
3. The Council shall communicate its decision to the person or entity referred to in paragraphs 1 and 2, including the grounds for listing, either directly, if the address is known, or through the publication of a notice, providing such person or entity an opportunity to present observations.
4. Where observations are submitted, or where substantial new evidence is presented, the Council shall review its decision and inform the person or entity accordingly.
Article 11
1. Annexes I and II shall include the grounds for listing of listed persons and entities, as provided by the Security Council or by the Sanctions Committee with regard to Annex I.
2. Annexes I and II shall also include, where available, information necessary to identify the persons or entities concerned, as provided by the Security Council or by the Sanctions Committee for Annex I. With regard to 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 entities, such information may include names, place and date of registration, registration number and place of business. Annex I shall also include the date of designation by the Security Council or by the Sanctions Committee.
Article 12
1. This Decision shall be reviewed, and, if necessary, amended, in particular as regards the categories of persons, entities or items or additional persons, entities or items to be covered by the restrictive measures, or taking into account relevant Security Council Resolutions.
2. The measures provided for in Article 6 shall be reviewed within six months of the adoption of this Decision.
3. The measures referred to in Articles 4(1)(b) and (c) and 5(1)(b) and (c) shall be reviewed at regular intervals and at least every 12 months. They shall cease to apply in respect of the persons and entities concerned if the Council determines, in accordance with the procedure referred to in Article 9(2), that the conditions for their application are no longer met.
Article 13
Common Position 2006/795/CFSP is hereby repealed.
Article 14
This Decision shall enter into force on the date of its adoption.
Done at Brussels, 22 December 2010.