02013D0184 — EN — 21.12.2018 — 008.001

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Amended by:









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COUNCIL DECISION 2013/184/CFSP

of 22 April 2013

concerning restrictive measures against Myanmar/Burma and repealing Decision 2010/232/CFSP







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CHAPTER I

EXPORT RESTRICTIONS

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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 Myanmar/Burma 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 Myanmar/Burma;

(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 Myanmar/Burma;

(c) to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent the prohibitions referred to in point (a) or (b).

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Article 1a

1. The direct or indirect sale, supply, transfer or export of all dual-use goods and technology listed in Annex I to Council Regulation (EC) No 428/2009 ( 1 ) for military use in Myanmar/Burma, or to any military end-user or to the Border Guard Police in Myanmar/Burma 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 or other services related to goods and technology set out in paragraph 1 and to the provision, manufacture, maintenance and use of these goods and technology, directly or indirectly, to any military end-user or to the Border Guard Police in Myanmar/Burma, or for military use in Myanmar/Burma;

(b) to provide financing or financial assistance related to goods 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 goods and technology, or for the provision of related technical assistance, brokering services or other services, directly or indirectly, to any military end-user or to the Border Guard Police in Myanmar/Burma, or for military use in Myanmar/Burma.

3. The prohibitions in paragraphs 1 and 2 shall be without prejudice to the execution of contracts concluded before 27 April 2018 or ancillary contracts necessary for the execution of such contracts.

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Article 2

1. Articles 1 and 1a 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 or dual-use goods and technology listed in Annex I to Regulation (EC) No 428/2009 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 and 1a shall not apply to protective clothing, including flak jackets and military helmets, temporarily exported to Myanmar/Burma 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 equipment, technology or software intended primarily for use in the monitoring or interception by the Government of Myanmar/Burma, or on its behalf, of the internet and of telephone communications on mobile or fixed networks in Myanmar/Burma, including the provision of any telecommunication or internet monitoring or interception services of any kind, as well as the provision of financial and technical assistance to install, operate or update such equipment, technology or software, by nationals of Member States or from the territories of Member States shall be prohibited.

2. By derogation from paragraph 1, Member States may authorise the sale, supply, transfer or export of the equipment, technology or software, including the provision of any telecommunication or internet monitoring or interception services of any kind, as well as the related provision of financial and technical assistance, referred to in paragraph 1 if they have reasonable grounds to determine that the equipment, technology or software would not be used for internal repression by Myanmar/Burma's government, public bodies, corporations or agencies, or any person or entity acting on their behalf or at their direction.

The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under this paragraph, within four weeks of the authorisation.

3. The Union shall take the necessary measures in order to determine the relevant elements to be covered by this Article.

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CHAPTER II

RESTRICTIONS ON MILITARY TRAINING AND MILITARY COOPERATION

Article 4

1. The provision of military training to or military cooperation with the Myanmar Armed Forces (Tatmadaw) and the Border Guard Police shall be prohibited.

2. The prohibition in paragraph 1 shall not apply to training or cooperation aimed at strengthening democratic principles, the rule of law or respect for international law, including international human rights law, in Myanmar/Burma.







CHAPTER III

RESTRICTIONS ON ADMISSION

Article 5

1. Member States shall take the necessary measures to prevent the entry into, or transit through, their territories of:

(a) natural persons from the Myanmar Armed Forces (Tatmadaw) and the Border Guard Police responsible for serious human rights violations in Myanmar/Burma;

(b) natural persons from the Myanmar Armed Forces (Tatmadaw) and the Border Guard Police responsible for obstructing the provision of humanitarian assistance to civilians in need;

(c) natural persons from the Myanmar Armed Forces (Tatmadaw) and the Border Guard Police responsible for obstructing the conduct of independent investigations into alleged serious human rights violations or abuses, or

(d) natural persons associated with the natural persons referred to in points (a), (b) and (c),

as listed in the Annex.

2. Paragraph 1 shall not oblige a Member State to refuse its own nationals entry into its territory.

3. Paragraph 1 shall be without prejudice to the cases where a Member State is bound by an obligation of international law, namely:

(a) as a host country to an international intergovernmental organisation;

(b) as a host country to an international conference convened by, or under the auspices of, the UN;

(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 also applying 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 paragraph 3 or 4.

6. Member States may grant exemptions from the measures imposed under paragraph 1 where travel is justified on the ground of urgent humanitarian need, or on grounds of attending intergovernmental meetings and those promoted or hosted 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 the policy objectives of restrictive measures, including democracy, human rights and the rule of law in Myanmar/Burma.

7. A Member State wishing to grant exemptions referred to in paragraph 6 shall notify the Council 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.

8. Where, pursuant to paragraph 3, 4, 6 or 7, a Member State authorises the entry into, or transit through, its territory of persons listed in the Annex, the authorisation shall be limited to the purpose for which it is given and to the persons concerned thereby.







CHAPTER IV

FREEZING OF FUNDS AND ECONOMIC RESOURCES

Article 6

1. All funds and economic resources belonging to or owned, held or controlled by:

(a) natural persons from the Myanmar Armed Forces (Tatmadaw) and the Border Guard Police responsible for serious human rights violations in Myanmar/Burma;

(b) natural persons from the Myanmar Armed Forces (Tatmadaw) and the Border Guard Police responsible for obstructing the provision of humanitarian assistance to civilians in need;

(c) natural persons from the Myanmar Armed Forces (Tatmadaw) and the Border Guard Police responsible for obstructing the conduct of independent investigations into alleged serious human rights violations or abuses; or

(d) natural or legal persons, entities or bodies associated with the natural persons referred to in points (a), (b) and (c),

as listed in the Annex, 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 and bodies listed in the Annex.

3. The competent authority of a Member State 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 the natural or legal persons, entities or bodies listed in the Annex and dependent family members of such natural persons, 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 the routine holding or maintenance of frozen funds or economic resources;

(d) necessary for extraordinary expenses, provided that the relevant competent authority has notified the competent authorities of the other Member States and the Commission of the grounds on which it considers that a specific authorisation should be granted, at least two weeks prior to the authorisation; or

(e) to be paid into or from an account of a diplomatic or consular mission or an international organisation enjoying immunities in accordance with international law, insofar as such payments are intended to be used for official purposes of the diplomatic or consular mission or international organisation.

The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under this paragraph.

4. By way of derogation from paragraphs 1, the competent authorities of a Member State may authorise the release of certain frozen funds or economic resources if the following conditions are met:

(a) the funds or economic resources are the subject of an arbitral decision rendered prior to the date on which the natural or legal person, entity or body referred to in paragraph 1 was listed in the Annex, or of a judicial or administrative decision rendered in the Union, or a judicial decision enforceable in the Member State concerned, prior to or after that date;

(b) the funds or economic resources will be used exclusively to satisfy claims secured by such a decision or recognised as valid in such a decision, within the limits set by applicable laws and regulations governing the rights of persons having such claims;

(c) the decision is not for the benefit of a natural or legal person, entity or body listed in the Annex; and

(d) recognising the decision is not contrary to public policy in the Member State concerned.

The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under this paragraph.

5. Paragraph 1 shall not prevent a natural or legal person, entity or body listed in the Annex from making a payment due under a contract or agreement that was concluded by, or an obligation that arose for, a natural or legal person, an entity or body listed in the Annex prior to the date on which such natural or legal person, entity or body was listed therein, provided that the Member State concerned has determined that the payment is not in breach of paragraph 3.

6. Paragraph 2 shall not apply to the addition to frozen accounts of:

(a) interest or other earnings on those accounts;

(b) payments due under contracts, agreements or obligations that were concluded or arose prior to the date on which those accounts became subject to the measures provided for in paragraphs 1 and 2; or

(c) payments due under judicial, administrative or arbitral decisions rendered in the Union or enforceable in the Member State concerned,

provided that any such interest, other earnings and payments remain subject to the measures provided for in paragraph 1.







CHAPTER V

GENERAL AND FINAL PROVISIONS

Article 7

1. The Council, acting by unanimity upon a proposal by a Member State or the High Representative of the Union for Foreign Affairs and Security Policy, shall establish and amend the list in the Annex.

2. The Council shall communicate the decision referred to in paragraph 1, including the grounds for the listing, to the natural or legal person, entity or body concerned, either directly, if the address is known, or through the publication of a notice, providing such 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 the decision referred to in paragraph 1 and inform the natural or legal person, entity or body concerned accordingly.

Article 8

1. The Annex shall include the grounds for listing the natural and legal persons, entities and bodies referred to in Articles 5(1) and 6(1).

2. The Annex shall also contain, where available, the information necessary to identify the natural or legal persons, entities or bodies concerned. With regard to natural persons, such information may include: names, including aliases; date and place of birth; nationality; passport and identity card numbers; gender; address, if known; and function or profession. With regard to legal persons, entities or bodies, such information may include names, place and date of registration, registration number and place of business.

Article 9

It shall be prohibited to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent the measures laid down in this Decision.

Article 10

No claims in connection with any contract or transaction the performance of which has been affected, directly or indirectly, in whole or in part, by the measures imposed under this Decision, including claims for indemnity or any other claim of this type, such as a claim for compensation or a claim under a guarantee, in particular a claim for extension or payment of a bond, guarantee or indemnity, in particular a financial guarantee or financial indemnity, of whatever form, shall be satisfied, if they are made by:

(a) designated natural or legal persons, entities or bodies listed in the Annex;

(b) any natural or legal person, entity or body acting through or on behalf of one of the persons, entities or bodies referred to in point (a).

Article 11

In order to maximise the impact of the measures set out in this Decision, the Union shall encourage third States to adopt restrictive measures similar to those provided for in this Decision.

Article 12

This Decision shall apply until 30 April 2019. It shall be kept under constant review. It shall be renewed, or amended as appropriate, if the Council deems that its objectives have not been met.

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Article ►M5 13 ◄

Decision 2010/232/CFSP is hereby repealed.

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This Decision shall enter into force on the date of its publication in the Official Journal of the European Union.

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ANNEX

List of natural and legal persons, entities and bodies referred to in Articles 5(1) and 6(1)

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Name Identifying information Reasons Date of listing ▼M7 1. Aung Kyaw Zaw Date of birth: 20 August 1961 Passport No: DM000826 Date of issue: 22 November 2011 Date of expiry: 21 November 2021 Military identification number: BC 17444 Lieutenant General Aung Kyaw Zaw was the Commander of the Bureau of Special Operations No. 3 of the Myanmar Armed Forces (Tatmadaw) from August 2015 to the end of 2017. The Bureau of Special Operations No. 3 oversaw the Western Command and, in that context, Lieutenant General Aung Kyaw Zaw is responsible for the atrocities and serious human rights violations committed against the Rohingya population in Rakhine State by the Western Command during that period. These include unlawful killings, sexual violence and the systematic burning of Rohingya houses and buildings. 25.6.2018 ▼M6 2. Maung Maung Soe Date of birth: March 1964 National Identification Number: Tatmadaw Kyee 19571 Major General Maung Maung Soe was the Commander of the Western Command of the Myanmar Armed Forces (Tatmadaw) from October 2016 to 10 November 2017 and oversaw the military operations in Rakhine State. In that context, he is responsible for the atrocities and serious human rights violations committed against Rohingya population in Rakhine State by the Western Command during that period. These include unlawful killings, sexual violence and systematic burning of Rohingya houses and buildings. 25.6.2018 ▼M7 3. Than Oo Date of birth: 12 October 1973 Military identification number: BC 25723 Brigadier General Than Oo is the Commander of the 99th Light Infantry Division of the Myanmar Armed Forces (Tatmadaw). In that context, he is responsible for the atrocities and serious human rights violations committed against the Rohingya population in Rakhine State in the second half of 2017 by the 99th Light Infantry Division. These include unlawful killings, sexual violence and the systematic burning of Rohingya houses and buildings. 25.6.2018 4. Aung Aung Military identification number: BC 23750 Brigadier General Aung Aung is the Commander of the 33rd Light Infantry Division of the Myanmar Armed Forces (Tatmadaw). In that context, he is responsible for the atrocities and serious human rights violations committed against the Rohingya population in Rakhine State in the second half of 2017 by the 33rd Light Infantry Division. These include unlawful killings, sexual violence and the systematic burning of Rohingya houses and buildings. 25.6.2018 5. Khin Maung Soe Brigadier General Khin Maung Soe is the Commander of the Military Operation Command 15, also sometimes known as the 15th Light Infantry Division, of the Myanmar Armed Forces (Tatmadaw), under which Infantry Battalion No. 564 falls. In that context, he is responsible for the atrocities and serious human rights violations committed against the Rohingya population in Rakhine State in the second half of 2017 by the Military Operation Command 15, in particular by Infantry Battalion No. 564. These include unlawful killings, sexual violence and the systematic burning of Rohingya houses and buildings. 25.6.2018 ▼M6 6. Thura San Lwin Date of birth: 1957 Brigadier General Thura San Lwin was the Commander of the Border Guard Police from October 2016 until early October 2017. In that context, he is responsible for the atrocities and serious human rights violations committed against Rohingya population in Rakhine State by the Border Guard Police during that period. These include unlawful killings and systematic burning of Rohingya houses and buildings. 25.6.2018 7. Thant Zin Oo Thant Zin Oo is the Commander of the 8th Security Police Battalion. In that context, he is responsible for the atrocities and serious human rights violations committed against Rohingya population in Rakhine State in the second half of 2017 by the 8th Security Police Battalion. The serious human rights violations include unlawful killings and systematic burning of Rohingya houses and buildings. Those violations were conducted in conjunction with and in direct support of the 33rd Light Infantry Division of the Myanmar Armed Forces (Tatmadaw) led by Brigadier General Aung Aung. Thant Zin Oo is therefore associated with listed person, Brigadier General Aung Aung. 25.6.2018 ▼M8 8. Ba Kyaw Ba Kyaw is a Staff Sergeant in the 564th Light Infantry Battalion (LIB) of the Myanmar Armed Forces (Tatmadaw). He committed atrocities and serious human rights violations, including murder, deportation and torture, against the Rohingya population in Rakhine State in the second half of 2017. In particular, he has been identified as one of the key perpetrators of the Maung Nu massacre on 27 August 2017. 21.12.2018 9. Tun Naing Tun Naing is the Commanding Officer of the Border Guard Police (BGP) base in Taung Bazar. In that capacity, he is responsible for the atrocities and serious human rights violations against the Rohingya population in Rakhine State committed by the BGP in Taung Bazar before, around and after 25 August 2017, including forced detention, ill-treatment and torture. 21.12.2018 10. Khin Hlaing Date of birth: 2 May 1968 Brigadier General Khin HLaing is the former Commander of the 99th Light Infantry Division (LID) and the current Commander of the North-eastern Command of the Myanmar Armed Forces (Tatmadaw). As the Commander of the 99th LID he oversaw military operations carried out in Shan State in 2016 and early 2017. In that context, he is responsible for the atrocities and serious human rights violations committed against ethnic minority villagers in Shan State in the second half of 2016 by the 99th LID. These include unlawful killings, forced detention and destruction of villages. 21.12.2018 11. Aung Myo Thu Major Aung Myo Thu is the Field Unit Commander of 33rd Light Infantry Division (LID) of the Myanmar Armed Forces (Tatmadaw). As the Field Unit Commander of the 33rd LID he oversaw military operations carried out in Rakhine State in 2017. In that context, he is responsible for the atrocities and serious human rights violations committed against the Rohingya population in Rakhine State in the second half of 2017 by the 33rd LID. These include unlawful killings, sexual violence and forced detention. 21.12.2018 12. Thant Zaw Win Thant Zaw Win is a Major in the 564th Light Infantry Battalion (LIB) of the Myanmar Armed Forces (Tatmadaw). In that capacity, he oversaw military operations carried out in Rakhine State and is responsible for the atrocities and serious human rights violations committed against the Rohingya population in Rakhine State by the 564th LIB, notably in and around Maung Nu village on 27 August 2017. These include unlawful killings, sexual violence and systematic burning of Rohingya houses and buildings. 21.12.2018 13. Kyaw Chay Kyaw Chay is a Corporal in the Border Guard Police (BGP). He was formerly based in Zay Di Pyin and was the Commanding Officer of the BGP base in Zay Di Pyin in the period around 25 August 2017 when a series of human rights violations were committed by the BGP under his command. In that context, he is responsible for the atrocities and serious human rights violations by the BGP against the Rohingya population in Rakhine State in that period. He also participated in serious human rights violations. These violations include the ill-treatment of detainees and torture. 21.12.2018 14. Nyi Nyi Swe Major General Nyi Nyi Swe is the former Commander of the Northern Command of the Myanmar Armed Forces (Tatmadaw). In that capacity, he is responsible for the atrocities and serious human rights violations committed in Kachin State from May 2016 to April 2018 (until his appointment as Commander of the South-western Command) by the Northern Command, including ill-treatment of civilians. He is also responsible for obstructing the provision of humanitarian assistance to civilians in need in Kachin State in that period, in particular the blocking of food transports. 21.12.2018