EN Official Journal of the European Union L 127/84

COUNCIL COMMON POSITION 2008/369/CFSP

of 14 May 2008

concerning restrictive measures against the Democratic Republic of the Congo and repealing Common Position 2005/440/CFSP

THE COUNCIL OF THE EUROPEAN UNION,

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

Whereas:

(1) Following the adoption by the United Nations Security Council on 18 April 2005 of Resolution 1596 (2005) (UNSCR 1596 (2005)), the Council adopted Common Position 2005/440/CFSP of 13 June 2005 concerning restrictive measures against the Democratic Republic of the Congo (1).

(2) On 31 March 2008, the United Nations Security Council adopted Resolution 1807 (2008) (UNSCR 1807 (2008)) providing for new exemptions to the restrictive measures regarding the arms embargo, asset freeze and travel ban, listing the criteria for designation by the Sanctions Committee established pursuant to United Nations Security Council Resolution 1533 (2004) (UNSCR 1533 (2004)) of individuals and entities subject to an asset freeze and travel ban, and extending the measures until 31 December 2008.

(3) For the sake of clarity, the measures imposed by Common Position 2005/440/CFSP and those to be imposed pursuant to UNSCR 1807 (2008) should be integrated into a single legal instrument.

(4) Common Position 2005/440/CFSP should therefore be repealed.

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

HAS ADOPTED THIS COMMON POSITION:

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 the European Union Code of Conduct on Arms Exports. 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.

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 establish the list contained in the Annex and amend it as determined by the Sanctions Committee.

Article 7

This Common Position shall take effect on the date of its adoption.

Article 8

This Common Position shall be reviewed, amended or repealed as appropriate, as determined by the United Nations Security Council.

Article 9

Common Position 2005/440/CFSP is hereby repealed.

Article 10

This Common Position shall be published in the Official Journal of the European Union.

Done at Brussels, 14 May 2008. For the Council The President A. BAJUK

(1) OJ L 152, 15.6.2005, p. 22. Common Position as last amended by Common Position 2008/179/CFSP (OJ L 57, 1.3.2008, p. 37).