COUNCIL REGULATION (EU) 2022/2309

of 25 November 2022

concerning restrictive measures in view of the situation in Haiti

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 (CFSP) 2022/2319 of 25 November 2022 concerning restrictive measures in view of the situation in Haiti (1),

Having regard to the joint proposal of the High Representative of the Union for Foreign Affairs and Security Policy and of the European Commission,

Whereas:

(1) On 21 October 2022, the United Nations Security Council adopted Resolution 2653 (2022) which establishes a framework for targeted restrictive measures in view of the situation in Haiti.

(2) In accordance with the United Nations Security Council Resolution (UNSCR) 2653 (2022), on 25 November 2022, the Council adopted Decision (CFSP) 2022/2319, which provides for travel restrictions, a targeted arms embargo, the freezing of funds and economic resources of, and a prohibition to make funds and economic resources available to, persons, entities or bodies engaged in or supporting gangs involved in violence, criminal activities or human rights abuses which undermine the peace, stability and security of Haiti and the region. Persons, entities and bodies subject to those restrictive measures, as designated by the Committee established by paragraph 19 of UNSCR 2653 (2022), are listed in the Annex to Decision (CFSP) 2022/2319. In accordance with UNSCR 2653 (2022), Decision (CFSP) 2022/2319 includes one person in the Annex thereto.

(3) Certain of those measures fall within the scope of the Treaty on the Functioning of the European Union and, therefore, notably with a view to ensuring its uniform application by economic operators in all Member States, regulatory action at the level of the Union is necessary in order to implement them.

(4) This Regulation respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union, in particular the right to an effective remedy and to a fair trial, the rights of defence and the right to the protection of personal data. This Regulation should be applied in accordance with those rights.

(5) The power to establish and amend the list in Annex I to this Regulation should be exercised by the Council in order to ensure consistency with the process for establishing, amending and reviewing the Annex to Decision (CFSP) 2022/2319.

(6) The procedure for amending the list set out in Annex I 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.

(7) For the implementation of this Regulation, and in order to ensure 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 are to be frozen in accordance with this Regulation should be made public. Any processing of personal data should comply with Regulations (EU) 2016/679 (2) and (EU) 2018/1725 (3) of the European Parliament and of the Council.

(8) Member States and the Commission should inform each other of the measures taken pursuant to this Regulation and of other relevant information at their disposal in connection with this Regulation.

(9) Member States should lay down rules on penalties applicable to infringements of the provisions of this Regulation and make sure that they are implemented. Those penalties should be effective, proportionate and dissuasive,

HAS ADOPTED THIS REGULATION:

Article 1 For the purposes of this Regulation, the following definitions apply: (a) ‘claim’ means any claim, whether asserted by legal proceedings or not, made before or after 28 November 2022, under or in connection with a contract or transaction, and in particular: (i) a claim for performance of any obligation arising under or in connection with a contract or transaction; (ii) a claim for extension or payment of a bond, financial guarantee or indemnity of whatever form; (iii) a claim for compensation in respect of a contract or transaction; (iv) a counterclaim; (v) a claim for the recognition or enforcement, including by the procedure of exequatur, of a judgment, an arbitration award or an equivalent decision, wherever made or given; (b) ‘contract or transaction’ means any transaction of whatever form and whatever the applicable law, whether comprising one or more contracts or similar obligations made between the same or different parties; for this purpose ‘contract’ includes a bond, guarantee or indemnity, particularly a financial guarantee or financial indemnity, and credit, whether legally independent or not, as well as any related provision arising under, or in connection with, the transaction; (c) ‘competent authorities’ means the competent authorities of the Member States as identified on the websites listed in Annex II; (d) ‘economic resources’ means assets of every kind, whether tangible or intangible, movable or immovable, which are not funds, but which may be used to obtain funds, goods or services; (e) ‘freezing of economic resources’ means preventing the use of economic resources to obtain funds, goods or services in any way, including, but not limited to, by selling, hiring or mortgaging them; (f) ‘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; (g) ‘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 derivative 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 showing evidence of an interest in funds or financial resources; (h) ‘Sanctions Committee’ means the Committee of the United Nations Security Council established pursuant to paragraph 19 of UNSCR 2653 (2022); (i) ‘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, transmission of working knowledge or skills or consulting services, including verbal forms of assistance; (j) ‘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 It shall be prohibited to: (a) provide technical assistance 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 therefor, directly or indirectly to any natural or legal person, entity or body, as listed in Annex I; (b) provide financing or financial assistance related to military activities, including in particular grants, loans and export credit insurance, as well as insurance and reinsurance, for any sale, supply, transfer or export of arms and related materiel, or for the provision of related technical assistance, directly or indirectly to any natural or legal person, entity or body, as listed in Annex I.

Article 3 1. All funds and economic resources belonging to, owned, held or controlled by any natural or legal person, entity or body as listed in Annex I 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 I.

Article 4 1. Annex I shall include natural or legal persons, entities and bodies identified by the United Nations Security Council (the ‘Security Council’) or the Sanctions Committee as being responsible for or complicit in, or having engaged in, directly or indirectly, actions that threaten the peace, security or stability of Haiti, including but not limited to natural or legal persons having threatened the peace, security or stability of Haiti through any of the following actions: (a) engaging in, directly or indirectly, or supporting criminal activities and violence involving armed groups and criminal networks that promote violence, including forcible recruitment of children by such groups and networks, kidnappings, trafficking in persons and the smuggling of migrants, and homicides and sexual and gender-based violence; (b) supporting illicit trafficking and diversion of arms and related materiel, or illicit financial flows related thereto; (c) acting for or on behalf of or at the direction of or otherwise supporting or financing a person or entity designated in connection with the activity described in points (a) and (b), including through the direct or indirect use of the proceeds from organised crime, including proceeds from illicit production and trafficking in drugs and their precursors originating in or transiting through Haiti, the trafficking in persons and the smuggling of migrants from Haiti or the smuggling and trafficking of arms to or from Haiti; (d) acting in violation of the arms embargo established in paragraph 11 of UNSCR 2653 (2022), or as having directly or indirectly supplied, sold, or transferred to armed groups or criminal networks in Haiti, or as having been the recipient of, arms or any related materiel, or any technical advice, training or assistance, including financing and financial assistance, related to violent activities of armed groups or criminal networks in Haiti; (e) planning, directing, or committing acts that violate international human rights law or acts that constitute human rights abuses, including those involving extrajudicial killing, including of women and children, and the commission of acts of violence, abduction, enforced disappearances or kidnappings for ransom in Haiti; (f) planning, directing or committing acts involving sexual and gender-based violence, including rape and sexual slavery, in Haiti; (g) obstructing delivery of humanitarian assistance to Haiti or access to, or distribution of, humanitarian assistance in Haiti; (h) attacking personnel or premises of United Nations missions and operations in Haiti, or providing support for such attacks. 2. Annex I shall include the grounds for the listing of natural or legal persons, entities or bodies concerned. 3. Annex I shall include, where available, information provided by the Security Council or by the Sanctions Committee 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. Annex I shall also include the date of designation by the Security Council or by the Sanctions Committee.

Article 5 Article 3(1) and (2) shall not apply to the making available of funds or economic resources necessary to ensure the timely delivery of urgently needed humanitarian assistance or to support other activities that support basic human needs in Haiti, by the United Nations, its specialised agencies or programmes, humanitarian organisations having observer status with the United Nations General Assembly that provide humanitarian assistance and their implementing partners including bilaterally or multilaterally funded non-governmental organisations participating in the United Nations Humanitarian Response Plan for Haiti.

Article 6 1. By way of derogation from Article 3, the competent authorities 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 concerned are: (a) necessary to satisfy the basic needs of natural or legal persons, entities or bodies listed in Annex I, and dependent family members of such natural persons, including payments for food, 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; provided that the competent authority of the Member State concerned has notified the Sanctions Committee of that determination and of its intention to grant an authorisation and in the absence of a negative decision by the Sanctions Committee within 5 working days of such notification. 2. By way of derogation from Article 3, the competent authorities of the Member States 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 concerned are necessary for extraordinary expenses, provided that such determination has been notified to the Sanctions Committee by the competent authority of the Member State concerned and that the determination has been approved by that Committee. 3. The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraphs 1 and 2 within 2 weeks of the authorisation.

Article 7 1. By way of derogation from Article 3(1), the competent authorities 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 a judicial, administrative or arbitral lien established prior to the date on which the natural or legal person, entity or body referred to in Article 4 was included in Annex I, or of a judicial, administrative or arbitral judgement rendered prior to that date; (b) the funds or economic resources will be used exclusively to satisfy claims secured by, or recognised as valid in, such a lien or judgment, 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 Annex I; (d) recognition of the decision is not contrary to public policy in the Member State concerned; and (e) the Sanctions Committee has been notified by the Member State of the lien or judgment. 2. The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraph 1 within 2 weeks of the authorisation.

Article 8 1. By way of derogation from Article 3(1) and provided that a payment by a natural or legal person, entity or body listed in Annex I is due under a contract or agreement that was concluded by, or an obligation that arose for, the natural or legal person, entity or body concerned, before the date on which that natural or legal person, entity or body was included in Annex I, the competent authorities may authorise, under such conditions as they deem appropriate, the release of certain frozen funds or economic resources, provided that the competent authority concerned has determined that: (a) the funds or economic resources will be used for the payment by a natural or legal person, entity or body listed in Annex I; (b) the payment is not in breach of Article 3(2); and (c) the Sanctions Committee has been notified by the relevant Member State of the intention to grant an authorisation 10 working days in advance. 2. The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraph 1 within 2 weeks of the authorisation.

Article 9 1. Article 3(2) shall not prevent the crediting of frozen accounts by financial or credit institutions that receive funds transferred by third parties onto 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. 2. Article 3(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 before the date on which the natural or legal person, entity or body referred to in Article 4 was included in Annex I; or (c) payments due under judicial, administrative or arbitral decisions rendered in a Member State or enforceable in the Member State concerned, provided that any such interest, other earnings and payments remain subject to the measures provided for in Article 3(1).

Article 10 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 information on accounts and amounts frozen in accordance with Article 3(1), to the competent authority of the Member State where they are resident or located, and transmit such information, directly or through the Member State, to the Commission; and (b) cooperate with the competent authority in any verification of the information referred to in point (a). 2. Any additional information received directly by the Commission shall be made available to the Member States. 3. 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 11 1. It shall be prohibited to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent the measures referred to in Articles 2 and 3. 2. Natural or legal persons, entities or bodies listed in Annex I, shall: (a) report before 9 January 2023 or within 6 weeks from the date of listing in Annex I, whichever is latest, funds or economic resources within the jurisdiction of a Member State belonging to, owned, held or controlled by them, to the competent authority of the Member State where those funds or economic resources are located; and (b) cooperate with the competent authority in any verification of such information. 3. Failure to comply with paragraph 2 shall be considered as participation, as referred to in paragraph 1, in activities the object or effect of which is to circumvent the measures referred to in Article 2. 4. The Member State concerned shall inform the Commission within 2 weeks of the information received pursuant to paragraph 2, point (a). 5. The obligation in paragraph 2, point (a) shall not apply until 1 January 2023 with regard to funds or economic resources located in a Member State that had laid down a similar reporting obligation under national law before 28 November 2022. 6. Any information provided or received in accordance with this Article shall be used only for the purposes for which it was provided or received. 7. Any processing of personal data shall be carried out in accordance with this Regulation, Regulation (EU) 2016/679 and Regulation (EU) 2018/1725 of the European Parliament and of the Council and only in so far as necessary for the application of this Regulation.

Article 12 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. Actions by natural or legal persons, entities or bodies shall not give rise to any liability of any kind on their part if they did not know, and had no reasonable cause to suspect, that their actions would infringe the measures set out in this Regulation.

Article 13 1. 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 Regulation, including claims for indemnity or any other claim of this type, such as a claim for compensation or a claim under a guarantee, notably a claim for extension or payment of a bond, guarantee or indemnity, particularly a financial guarantee or financial indemnity, of whatever form, shall be satisfied, if they are made by: (a) natural or legal persons, entities or bodies listed in Annex I; (b) any natural or legal person, entity or body acting through or on behalf of one of the natural or legal persons, entities or bodies referred to in point (a). 2. In any proceedings for the enforcement of a claim, the onus of proving that satisfying the claim is not prohibited by paragraph 1 shall be on the natural or legal person, entity or body seeking the enforcement of that claim. 3. This Article is without prejudice to the right of the natural or legal persons, entities and bodies referred to in paragraph 1 to judicial review of the legality of the non-performance of contractual obligations in accordance with this Regulation.

Article 14 1. The Commission and Member States shall inform each other of the measures taken under this Regulation and share any other relevant information at their disposal in connection with this Regulation, in particular information in respect of: (a) funds frozen under Article 3(1) and authorisations granted under Articles 6, 7 and 8; (b) violation and enforcement problems and judgments handed down by national courts. 2. The Member States shall immediately inform each other and the Commission of any other relevant information at their disposal which might affect the effective implementation of this Regulation.

Article 15 The Commission shall be empowered to amend Annex II on the basis of information supplied by Member States.

Article 16 1. Where the Security Council or the Sanctions Committee lists a natural or legal person, entity or body and has provided a statement of reasons for the designation, the Council shall include that natural or legal person, entity or body in Annex I. The Council shall communicate its decision and the statement of reasons 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 that natural or legal person, entity or body with 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 natural or legal person, entity or body accordingly. 3. Where the Security Council or the Sanctions Committee decides to de-list a natural or legal person, entity or body, or to amend the identifying data of a listed natural or legal person, entity or body, the Council shall amend Annex I accordingly.

Article 17 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 the rules referred to in paragraph 1 without delay after 28 November 2022 and shall notify it of any subsequent amendment.

Article 18 1. The Council, the Commission and the High Representative of the Union for Foreign Affairs and Security Policy (the ‘High Representative’) shall process personal data in order to carry out their tasks under this Regulation. Those tasks include: (a) as regards the Council, preparing and making amendments to Annex I; (b) as regards the High Representative, preparing amendments to Annex I; (c) as regards the Commission: (i) adding the contents of Annex I to the electronic, consolidated list of persons, groups and entities subject to Union financial sanctions and to the interactive sanctions map, both publicly available; (ii) processing information on the impact of the measures provided for in this Regulation such as the value of frozen funds and information on authorisations granted by the competent authorities. 2. The Council, the Commission and the High Representative may process, where applicable, relevant data relating to criminal offences committed by listed natural persons, to criminal convictions of such persons or to security measures concerning such persons, only to the extent that such processing is necessary for the preparation of Annex I. 3. For the purposes of this Regulation, the Council, the Commission service listed in Annex II to this Regulation and the High Representative are designated as ‘controller’ within the meaning of Article 3, point (8), of Regulation (EU) 2018/1725, in order to ensure that the natural persons concerned can exercise their rights under Regulation (EU) 2018/1725.

Article 19 1. Member States shall designate the competent authorities referred to in this Regulation and identify them on the websites listed in Annex II. Member States shall notify the Commission of any changes in the addresses of their websites listed in Annex II. 2. Member States shall notify the Commission of their competent authorities, including the contact details of those competent authorities, without delay after 28 November 2022, and shall notify it of any subsequent amendment. 3. Where this Regulation sets out 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 II.

Article 20 This Regulation shall apply: (a) within the territory of the Union, including its airspace; (b) on board any aircraft or vessel under the jurisdiction of a Member State; (c) to any natural 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, inside or outside the territory of the Union, 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 21 This Regulation shall enter into force on the date 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, 25 November 2022. For the Council The President J. SÍKELA

(1) See page 135 of this Official Journal.

(2) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).

(3) Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).