COUNCIL DECISION 2010/788/CFSP
of 20 December 2010
concerning restrictive measures against the Democratic Republic of the Congo and repealing Common Position 2008/369/CFSP
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on European Union, and in particular Article 29 thereof,
Whereas:
(1)
On 14 May 2008, the Council adopted Common Position 2008/369/CFSP concerning restrictive measures against the Democratic Republic of the Congo (1) following the adoption by the United Nations Security Council on 31 March 2008 of Resolution 1807 (2008) (‘UNSCR 1807 (2008)’).
(2)
On 1 December 2010, the Sanctions Committee established pursuant to United Nations Security Council Resolution 1533 (2004) (‘UNSCR 1533 (2004)’) amended the list of persons and entities which are subject to restrictive measures.
(3)
The procedure for amending the Annex 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.
(4)
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.
(5)
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.
(6)
Common Position 2008/369/CFSP should therefore be repealed and replaced by this Decision.
(7)
The Union implementing measures are set out in Council Regulation (EC) No 889/2005 of 13 June 2005 imposing certain restrictive measures in respect of the Democratic Republic of the Congo (2) and Council Regulation (EC) No 1183/2005 of 18 July 2005 imposing certain specific restrictive measures directed against persons acting in violation of the arms embargo with regard to the Democratic Republic of the Congo (3),
HAS ADOPTED THIS DECISION:
Article 1
1. The direct or indirect supply, sale or transfer of arms and any related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment and spare parts for the aforementioned to all non-governmental entities and individuals operating in the territory of the Democratic Republic of the Congo (DRC) 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 also be prohibited to:
(a)
grant, sell, supply or transfer 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, directly or indirectly to all non-governmental entities and individuals operating in the territory of the DRC;
(b)
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, or for any grant, sale, supply, or transfer of related technical assistance, brokering services and other services, directly or indirectly to all non-governmental entities and individuals operating in the territory of the DRC.
Article 2
1. Article 1 shall not apply to:
(a)
the supply, sale or transfer of arms and any related materiel or the provision of technical assistance, financing, brokering services and other services related to arms and related materiel intended solely for support of, or use by, the United Nations Organisation Mission in the DRC (MONUC);
(b)
the supply, sale or transfer of protective clothing, including flak jackets and military helmets, temporarily exported to the DRC by United Nations personnel, representatives of the media and humanitarian and development workers and associated personnel, for their personal use only;
(c)
the supply, sale or transfer of non-lethal military equipment intended solely for humanitarian or protective use, or the provision of technical assistance and training, related to such non-lethal equipment.
2. The supply, sale or transfer of arms and any related materiel or the provision of services or technical assistance and training referred to in paragraph 1 shall be subject to prior authorisation by the competent authorities of the Member States.
3. Member States shall give the Sanctions Committee established pursuant to UNSCR 1533 (2004) (Sanctions Committee) advance notification of any shipment of arms and related materiel for the DRC, or any provision of technical assistance, financing, brokering services and other services related to military activities in the DRC, other than those referred to in paragraphs 1(a) and (b). Such notification shall contain all relevant information, including, where appropriate, the end-user, the proposed date of delivery and the itinerary of shipments.
4. Member States shall consider deliveries under paragraph 1 on a case-by-case basis, taking full account of the criteria set out in Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment (4). Member States shall require adequate safeguards against misuse of authorisations granted pursuant to paragraph 2 and, where appropriate, make provisions for repatriation of the arms delivered and related materiel.
Article 3
Restrictive measures as provided for in Articles 4(1) and 5(1) and (2) shall be imposed against the following persons and, as appropriate, entities, designated by the Sanctions Committee:
-
persons or entities acting in violation of the arms embargo and related measures as referred to in Article 1,
-
political and military leaders of foreign armed groups operating in the DRC who impede the disarmament and the voluntary repatriation or resettlement of combatants belonging to those groups,
-
political and military leaders of Congolese militias receiving support from outside the DRC, who impede the participation of their combatants in disarmament, demobilisation and reintegration processes,
-
political and military leaders operating in the DRC and recruiting or using children in armed conflicts in violation of applicable international law,
-
individuals operating in the DRC and committing serious violations of international law involving the targeting of children or women in situations of armed conflict, including killing and maiming, sexual violence, abduction and forced displacement,
-
individuals obstructing the access to or the distribution of humanitarian assistance in the eastern part of the DRC,
-
individuals or entities supporting the illegal armed groups in the eastern part of the DRC through illicit trade of natural resources.
The relevant persons and entities are listed in the Annex.
Article 4
1. Member States shall take the necessary measures to prevent the entry into, or transit through, their territories of the persons referred to in Article 3.
2. Paragraph 1 shall not oblige a Member State to refuse its own nationals entry into its territory.
3. Paragraph 1 shall not apply where the Sanctions Committee:
(a)
determines in advance and on a case-by-case basis that such entry or transit is justified on the grounds of humanitarian need, including religious obligation,
(b)
concludes that an exemption would further the objectives of relevant resolutions of the Security Council, that is to say peace and national reconciliation in the DRC and stability in the region,
(c)
authorises in advance and on a case-by-case basis, the transit of individuals returning to the territory of the State of their nationality, or participating in efforts to bring to justice perpetrators of grave violations of human rights or international humanitarian law.
4. In cases where, pursuant to paragraph 3, a Member State authorises the entry into, or transit through, its territory of persons designated by the Sanctions Committee, the authorisation shall be limited to the purpose for which it is given and to the persons concerned thereby.
Article 5
1. All funds, other financial assets and economic resources owned or controlled directly or indirectly by the persons or entities referred to in Article 3 or held by entities owned or controlled directly or indirectly by them or by any persons or entities acting on their behalf or at their direction, as identified in the Annex, shall be frozen.
2. No funds, other financial assets or economic resources shall be made available, directly or indirectly, to or for the benefit of the persons or entities referred to in paragraph 1.
3. Member States may allow for exemptions from the measures referred to in paragraphs 1 and 2 in respect of funds, other financial assets and economic resources which 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 the payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services;
(c)
intended exclusively for the payment of fees or service charges, in accordance with national laws, for routine holding or maintenance of frozen funds, or other financial assets and economic resources;
(d)
necessary for extraordinary expenses, after notification by the Member State concerned to, and approval by, the Sanctions Committee;
(e)
the subject of a judicial, administrative or arbitral lien or judgment, in which case the funds, other financial assets and economic resources may be used to satisfy that lien or judgment provided that the lien or judgment was entered before designation by the Sanctions Committee of the person or entity concerned, and is not for the benefit of a person or entity referred to in Article 3, after notification by the Member State concerned to the Sanctions Committee.
4. The exemptions referred to in paragraph 3(a), (b) and (c) may be made after notification to the Sanctions Committee by the Member State concerned of its intention to authorise, where appropriate, access to such funds, other financial assets and economic resources, and in the absence of a negative decision by the Sanctions Committee within four working days of such notification.
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 before the date on which those accounts became subject to restrictive measures,
provided that any such interest, other earnings and payments remain subject to paragraph 1.
Article 6
The Council shall amend the list contained in the Annex on the basis of the determinations made by the Security Council or by the Sanctions Committee.
Article 7
1. Where the United Nations Security Council or the Sanctions Committee lists a person or entity, the Council shall include such person or entity in the Annex. The Council shall communicate its decision, including the grounds for listing, to the person or entity concerned, either directly, if the address is known, or through the publication of a notice, providing such person or entity an opportunity to present observations.
2. Where observations are submitted, or where substantial new evidence is presented, the Council shall review its decision and inform the person or entity concerned accordingly.
Article 8
1. The Annex shall include the grounds for listing of listed persons and entities as provided by the United Nations Security Council or the Sanctions Committee.
2. The Annex shall also include, where available, information provided by the United Nations Security Council or by the Sanctions Committee necessary to identify the persons or entities concerned. 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. The Annex shall also include the date of designation by the United Nations Security Council or by the Sanctions Committee.
Article 9
This Decision shall be reviewed, amended or repealed as appropriate, as determined by the United Nations Security Council.
Article 10
Common Position 2008/369/CFSP is hereby repealed.
Article 11
This Decision shall enter into force on the date of its adoption.
Done at Brussels, 20 December 2010.