EN Official Journal of the European Union L 125/61

COUNCIL COMMON POSITION 2004/423/CFSP

of 26 April 2004

renewing restrictive measures against Burma/Myanmar

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article 15 thereof,

Whereas:

(1) On 28 October 1996, the Council adopted Common Position 1996/635/CFSP on Burma/Myanmar (1), as subsequently replaced by Common Position 2003/297/CFSP on Burma/Myanmar (2), as amended by Council Decision 2003/907/CFSP (3) expiring on 29 April 2004.

(2) In view of the current political situation in Burma/Myanmar, as witnessed by the failure of the military authorities to enter into substantive discussions with the democratic movement concerning a process leading to national reconciliation, respect for human rights and democracy, the continuing detention of Daw Aung San Suu Kyi and other members of the National League for Democracy and the continuing serious violations of human rights, including the failure to take action to eradicate the use of forced labour in accordance with the recommendations of the International Labour Organisation's High-Level Team report of 2001, the Council deems it necessary to maintain the measures taken under Common Position 2003/297/CFSP against the military regime in Burma/Myanmar, those who benefit most from its misrule and those who actively frustrate the process of national reconciliation, respect for human rights and democracy.

(3) Accordingly the scope of the visa ban and assets freeze should be maintained to include members of the military regime, the military and security forces, the military regime's economic interests and other individuals, groups, undertakings or entities associated with the military regime who formulate, implement or benefit from policies that impede Burma/Myanmar's transition to democracy and their families and associates.

(4) The implementation of the ban on high level visits at the level of Political Director and above should be maintained without prejudice to cases where the European Union decides that the visit is directly in pursuit of national reconciliation, respect for human rights and democracy in Burma/Myanmar.

(5) In the case of a substantial improvement in the overall political situation in Burma/Myanmar, not only the suspension of these restrictive measures, but also the gradual resumption of cooperation with Burma/Myanmar will be considered, after assessment of developments by the Council.

(6) Action by the Community is needed in order to implement certain measures,

HAS ADOPTED THIS COMMON POSITION:

Article 1

For the purposes of this Common Position, the term ‘technical assistance’ shall mean 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; technical assistance includes verbal forms of assistance.

Article 2

Member States shall continue not to permit the attachment of military personnel to the diplomatic representations of Burma/Myanmar in Member States, and all military personnel attached to diplomatic representations of the Member States in Burma/Myanmar shall remain withdrawn.

Article 3

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 Burma/Myanmar 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 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, as well as equipment which might be used for internal repression, directly or indirectly to any person, entity or body in, or for use in Burma/Myanmar;

(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, directly or indirectly to any person, entity or body in, or for use in Burma/Myanmar.

Article 4

1. Article 3 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, intended solely for humanitarian or protective use, or for institution building programmes of the UN, the EU and the Community, or of materiel intended for EU and UN crisis management operations;

(b) the provision of financing and financial assistance related to such equipment;

(c) the provision of technical assistance related to such equipment,

on condition that such exports have been approved in advance by the relevant competent authority.

2. Article 3 shall not apply to protective clothing, including flak jackets and military helmets, temporarily exported to Burma/Myanmar by United Nations personnel, personnel of the EU, the Community or its Member States, representatives of the media and humanitarian and development workers and associated personnel for their personal use only.

Article 5

Non-humanitarian aid or development programmes shall be suspended. Exceptions may be made for projects and programmes which should be, as far as possible, defined in consultation with democratic groups, including the National League for Democracy, and run with their involvement:

— in support of human rights and democracy,

— in support of poverty alleviation and, in particular, of the provision of basic needs for the poorest section of the population,

— in the context of decentralised cooperation through local civilian authorities and non-governmental organisations,

— in support of health and basic education through non-governmental organisations.

Article 6

1. Member States shall take the necessary measures to prevent the entry into, or transit through, the territories of senior members of the State Peace and Development Council (SPDC), Burmese authorities in the tourism sector, senior members of the military, the Government or the security forces who formulate, implement or benefit from policies that impede Burma/Myanmar's transition to democracy, and their families being the natural persons listed in the Annex.

2. Paragraph 1 will 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 of an international intergovernmental organisation;

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

(c) under a multilateral agreement conferring privileges and immunities.

The Council shall be duly informed in each of these cases.

4. Paragraph 3 shall be considered as applying also in cases where a Member State is host country of the Organisation for Security and Cooperation in Europe (OSCE).

5. Member States may grant exemptions from the measures imposed in paragraph 1 where travel is justified on the grounds of urgent humanitarian need, or on grounds of attending intergovernmental meetings, including those promoted by the European Union, where a political dialogue is conducted that directly promotes democracy, human rights and the rule of law in Burma/Myanmar.

6. A Member State wishing to grant exemptions referred to in paragraph 5 shall notify the Council in writing. The exemption will be deemed to be granted unless one or more of the Council Members raises an objection in writing within 48 hours of receiving notification of the proposed exemption. In the event that one or more of the Council members raises an objection, the Council, acting by qualified majority, may decide to grant the proposed exemption.

7. In cases where pursuant to paragraphs 3, 4, 5 and 6, 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.

Article 7

1. All funds and economic resources belonging to the individual members of the Government of Burma/Myanmar and to the natural or legal persons, entities or bodies associated with them 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 natural or legal persons, entities or bodies listed in the Annex.

3. Exemptions may be made for funds or 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 payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services;

(c) intended exclusively for payment of fees or service charges for routine holding or maintenance of frozen funds or economic resources;

(d) necessary for extraordinary expenses.

4. 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 the date on which those accounts became subject to restrictive measures,

provided that any such interest, other earnings and payments continue to be subject to paragraph 1.

Article 8

High-level bilateral governmental (Ministers and Officials at the level of Political Director and above) visits to Burma/Myanmar shall remain suspended. The Council may, in exceptional circumstances, decide to grant exceptions to this rule.

Article 9

The Council, acting upon a proposal by a Member State or the Commission, shall adopt modifications of the list contained in the Annex as required.

Article 10

This Common Position shall apply for a 12-month period. 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.

Article 11

This Common Position shall take effect on 30 April 2004.

Article 12

This Common Position shall be published in the Official Journal.

Done at Luxembourg, 26 April 2004. For the Council The President B. COWEN

(1) OJ L 287, 8.11.1996, p. 1.

(2) OJ L 106, 29.4.2003, p. 36.

(3) OJ L 340, 24.12.2003, p. 81.