Proposal for a COUNCIL REGULATION (EC) prohibiting the satisfying of claims with regard to contracts and transactions the performance of which was affected by the United Nations Security Council Resolution 883 (1993) and related resolutions
Date: 1993-11-23
Institutions: European Commission
Subjects: Libya, UN resolution, contract, credit, economic relations, international sanctions

COMMISSION  OF THE EUROPEAN  COMMUNITIES 

COM(93) 592 final 

Brussels, 23 November  1993 

Proposal  for a 

COUNCIL REGULATION  (EC) 

preventing  the supply of certain goods and services to Libya 

Proposal  for a 

COUNCIL REGULATION  (EC) 

prohibiting the satisfying of claims with regard  to contracts and 

transactions  the performance of which was affected by  the United 

Nations Security Council  Resolution 883(1993) and related  resolutions 

(presented by  the Commission) 

m- • *••••:.-

R*55S 

Bill 

n==^=~ 

p&?ej5r 

Proposal  for a 

COUNCIL REGULATION  (EC) 

preventing the supply of certain goods and services to Libya 

A 

EXPLANATORY  MEMORANDUM 

1.  The Security Council  has decided  to extend  the scope of  the embargo 

of Libya  in view of  the persistent  non-compliance by Libya with  its 

Resolutions 731  (1992) and 748  (1992). 

The Community  has therefore  to extend  the scope of  its Council 

Regulation  (EEC) No. 945/92 accordingly. 

2.  To enhance  the transparency  of  the Community  legislation with 

regard  to the embargo of Libya, the existing embargo  rules and  the 

abovementioned extension of  the embargo  are contained  in a 

consolidated  form  in the new Regulation hereby proposed  to the 

Counc iI. 

As a consequence,  the proposal  also contains the repeal  of  the 

Regulation  (EEC) No. 945/92. 

y\  8L 

PROPOSAL  for a 

COUNCIL  REGULATION  (EC) No 

/93 

Of 

1993 

preventing  the supply of certain goods and services  to Libya 

The Council  of  the European Union 

Having  regard  to the Treaty establishing  the European  Community,  and 

in particular Article 228A thereof, 

Kaving regard to the common position adopted by the Council of the 

Suropean Union on 22 November 1993/ 

Having regard to the proposal of the Commission/ 

Whereas  the Community  has adopted  Council  Regulation  (EEC) No 945/92 of 

14 April  1992(D  in accordance with Resolution 748 (1992) of  the 

United  Nations Security Council; 

Whereas  the United  Nations Security Council,  in view of  the persistent 

non-compliance by Libya with  its Resolutions 731 (1992) and 748  (1992) 

and acting under  Chapter VII of  the Charter  of  the United  Nations, has 

decided  in  its Resolution 883 (1993) of  11 November  1993 to extend  the 

measures decided upon  in  its Resolution 748 (1992) 

whereas the Community, for reasons of transparency, has decided to 

incorporate the additional measures within the framework of an all-

embracing  Community  instrument; 

Whereas under  these conditions Council  Regulation  (EEC) No 945/92 can 

be repealed; 

Whereas  the Community  legislation,  in accordance with Resolutions 748 

(1992) and 883  (1993) of  the United  Nations Security Council, should 

not  affect  certain air  transport  services  Justified  by  significant 

humanitarian needs neither  prevent  the supply of some emergency 

equipment  and equipment  and services directly  related  to civilian air 

traffic control ; 

HAS ADOPTED THIS REGULATION: 

(1) O.J.  W  L 101 of  15.4.1992, p. 53. 

Article 1 

1)  Permission  shall  be denied  to any aircraft  to take off  from,  land 

in or overfly  the territory of  the Community  if  it  is destined to 

land  in or  has taken off  from  the territory of Libya. 

2)  Permission  shall  be granted when  the particular  flight  has been 

approved on grounds of significant  humanitarian need by  the 

Committee  set up pursuant  to paragraph  9 of Resolution 748  (1992) 

of  the United Nations Security Council. 

Article 2 

1)  The activities and operation of all  Libyan Arab Airlines offices 

shall  be prohibited,  and  their offices be closed  completely. 

2)  Any commercial  transaction with Libyan Arab Airlines shall  be 

prohibited,  including  the honouring or endorsement  of any  tickets 

or other  documents  issued by  that  airline. 

Article 3 

The provision  to Libya, directly or  indirectly, of  the goods and/or 

services  listed  in the Annex  to this Regulation shall  be prohibited 

Article 4 

Funds or other  financial  resources, derived  from  the sale or supply of 

any petroleum or petroleum  product,  including natural  gas and  natural 

gas products, agricultural  product  or commodity, originating  in Libya 

and exported  therefrom  after  1 December  1993, and accruing  to any 

commercial,  industrial  or public utility undertaking  which  is owned or 

controlled, directly or  indirectly, by  the Government  or public 

authorities of Libya, or  any entity, wherever  located or  organised, 

owned or controlled  by  the Government  or public authorities of Libya or 

any person  identified  by  the appropriate  authorities of  the Member 

States as acting  for  the purposes of  this Regulation, on behalf 

of  the Government  or public authorities of Libya or  the abovementioned 

entities shall  be paid  into bank accounts which  have been opened 

exclusively  for  these  funds or  financial  resources after  1 December 

1993. 

Article 5 

The sale or  supply  to Libya of products falling under  the same tariff 

nomenclature  codes as the products  listed  in the Annex  but whose sale 

or  supply  is not  prohibited  under  Article  3 shall  be subject  to prior 

authorization  to be  issued by  the competent  authorities of  the Member 

States. 

Article 6 

This Regulation  shall  apply notwithstanding any  rights or obligations 

conferred or  imposed  by any  international  agreement  or  any contract 

entered  into or  any  licence or permit  granted  before  1 December  1993. 

Article 7 

This Regulation shall  apply within  the territory of  the Community, 

including  its air space and  in any aircraft  or on any vessel  under  the 

jurisdiction of a Member  State, and  to any person elsewhere who  is a 

national  of a Member  State and any body elsewhere which  is  incorporated 

or constituted under  the  law of a Member  State. 

Article 8 

Each Member  State shall  determine  the sanctions  to be  imposed where the 

provisions of  this Regulations are  infringed. 

Article 9 

Council  Regulation  (EEC) No 945/92  is hereby  repealed 

Article 10 

This Regulation shall  enter  into force on the day of  its publication in 

the Official  Journal  of  the European Communities, 

it shall be applicable as of  1 December  1993, 00.01  hours Eastern 

Standard Time  in New York. 

This Regulation shall  be binding  in  its entirety and directly 

applicable  in all Member  States. 

Done at Brussels 

1993 

ANNEX 

Products and services whose supply  to Libya  is prohibited  under  Article 

3 of  this Reguiat ion : 

A) 

any aircraft  or  aircraft  components 

any engineering and maintenance servicing of any aircraft or 

aircraft  components ; 

advice, assistance or  training  to Libyan pilots, flight  engineers 

or aircraft  and ground maintenance personnel  associated with  the 

operation of aircraft  and airfields within Libya ; 

any certification of airworthiness  for Libyan aircraft  ; 

payment  of new claims against  existing  insurance contracts for 

Libyan aircraft  ; 

any new or  renewal  of direct  insurance  for Libyan aircraft  ; 

with  the exception of emergency  equipment  and equipment  and 

services directly  related  to civilian air  traffic control  : 

any materials or components destined  for  the construction, 

improvement  or maintenance of Libyan civiI Ian or military 

airfields and associated  facilities and equipment, or 

any engineering or other  services destined  for  the maintenance 

of  those airfields and associated  facilities and equipment  ; 

B) 

(I) Pumps of medium  to  large size whose capacity  is equal  to or  larger 

than 350 cubic metres per  hour and drivers (gas turbines and 

electric motors) designed  for use  in the transportation of  crude 

oiI  and natural gas. 

(I I)Equipment  designed  for use  in crude oil  export  terminals : 

Loading  buoys or  single point moorings  (SPM) 

Flexible hoses  for connection between underwater  manifolds 

(PLEM) and single point mooring  and  floating  loading hoses of 

large sizes  (from  12' to 16') 

Anchor  chains. 

(IiI)Equipment  not  specially  designed  for use  in crude oil  export 

terminals but which because of their large capacity can be used for 

this purpose: 

Loading pumps of large capacity  (4000 m3/H) and small head  (10 

bars) 

Boosting pumps within the same range of flow rates 

Inline pipe  line inspection tools and cleaning devices  (ie 

pigging tools)  (16' and above) 

Metering equipment of large capacity  (1000 m3/H and  above). 

(IV) Refinery  equipment 

Boilers meeting American Society of Mechanical  Engineers 1 

standards 

Furnaces meeting American Society of Mechanical  Engineers 8 

standards 

Fractionation columns meeting American Society of Mechanical 8 

standards 

Pumps meeting American Petroleum  Institute 610 standards 

Catalytic reactors meeting American Society of Mechanical 

Engineers 8 standards 

Prepared catalysts, including the following : 

Catalysts containing platinum Catalysts containing Molybdenum 

V.  Spare parts destined  for the items in  (I) to  (IV) above. 

Proposal  for a 

COUNCIL REGULATION  (EC) 

prohibiting the satisfying of claims with regard to contracts and 

transactions the performance of which was affected by the United 

Nations Security Council  Resolution 883(1993) and related resolutions 

2 

EXPLANATORY  MEMORANDUM 

1.  The Security Council  of  the United  Nations adopted  Resolution 

883(1993), extending  the embargo of  Libya. 

Paragraph  8 of  Resolution  883  1993 prohibits  the satisfying of  claims 

with  regard  to contracts  and  transactions,  the performance of which 

was affected  by  the Resolution  883  (1993) and  related  resolutions. 

2.  The  formulation of  paragraph  8 of  UNSC Resolution 883(1993) follows, 

mutatis mutandis,  the  formulation  of  paragraph  29 of  UNSC  Resolution 

687(1991), dealing with  such  claims by  Iraq. 

3.  The Community  has  implemented  paragraph  29 of  UNSC Resolution 

687(1991), by adopting Council  Regulation  (EEC) No 3541/92 of  7 

December  1992. 

4.  The present  proposal  for  a Council  Regulation  aims at  implementing 

paragraph  8 of  UNSC Resolution 883  (1993), and given  the 

abovementioned  similarity  between paragraphs 29 and 8 of  the 

respective  UNSC Resolutions, the present  proposal  follows, mutatis 

mutandis,  the formulation of Council  Regulation  (EEC) 3541/92. 

3 

PROPOSAL  for a 

COUNCIL REGULATION  (EC) N' 

/93 of 

prohibiting  the satisfying of claims with  regard  to contracts and 

transactions  the performance of which was affected  by  the United 

Nations Security Council  Resolution 883(1993) and related  resolutions 

THE COUNCIL 

Having  regard  to the Treaty establishing  the European Community,  and  in 

particular  Article 228A  thereof, 

E^-ving regard to the common position adopted by the Council of the 

European Union on 22 November 1993; 

Having regard to the proposal of the Commission 

Whereas, under  Regulation  (EEC) N* 945/92(1), and No  (EC).. . / 9 3 ^^ the 

Community  has taken measures  to prevent  certain  trade between  the 

Community  and Libya. 

Whereas, as a consequence of  the embargo against  Libya, the economic 

operators  in the Community  and  third countries are exposed  to the risk of 

claims by Libya; 

Whereas  the United  Nations Security Council  has adopted  Resolution 

883(1993) of  11 November  1993 which,  in  its paragraph  8, deals with 

claims by Libya  in relation  to contracts and  transactions  the performance 

of which was affected  by measures  imposed by  the Security Council 

pursuant  to Resolution 883(1993) and  related  resolutions; 

(1) OJ No L 101 of  15.4.1992, p.53 

(2) OJ L  ... of 

1993, p.  .. 

-7o 

Whereas  it  is necessary  to protect  operators  permanently  against  such 

claims  and  to prevent  Libya  from obtaining  compensation  for  the  negative 

effects of  the  embargo; 

Whereas  the Community  and  its Member  States  have  agreed  that  Libya  must 

comply  in full  with  the  provisions of  paragraph  8 of  United  Nations 

Security  Council  Resolution  883(1993) and  consider  that,  in deciding 

whether  to  reduce or  lift measures  taicen against  Libya,  particular 

account  must  be  taken  of  any  failure  by  Libya  to comply  with  paragraph  8 

of  the  Resolution  883(1993); 

HAS ADOPTED  THIS  REGULATION 

1  S) 

Article 1 

For  the purposes of  this Regulation : 

1.  '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,  financial  guarantee and 

indemnity or credit  whether  legally  independent  or  not  and any 

related  provision  arising under or  in connection with  the 

transact ion; 

2.  'claim' means any claim, whether  asserted  by  legal  proceedings or 

not, made before or  after  the date of entry  into force of  this 

Regulation, under or  in connection with a contract  or  transaction, 

and  in particular  includes : 

(a) a claim  for performance of any obligation arising under or  in 

connection with a contract  or  transaction; 

(b) a claim  for extension or payment  of a bond, financial  guarantee or 

indemnity of whatever  form-, 

(c) a claim  for compensation  in respect  of a contract  or  transaction; 

(d) a counterclaim 

(e) a claim  for  the recognition or enforcement,  including by the 

procedure of exequatur, of a Judgement, an arbitration award or an 

equivalent  decision, wherever made or given; 

3.  'measures decided on pursuant  to United Nations Security  Council 

Resolution 883(1993) and  related  resolutions' means measures of  the 

United  Nations Security  Council  or measures  introduced  by the 

European Communities or any State, country or  international 

organization  in conformity  with, as required  by, or  in connection 

with  the  implementation of  relevant  decisions of  the United  Nations 

Security  Council, or any action  including any military  action, 

authorized  by  the United  Nations Security Council,  in respect  of  the 

prevention of certain  trade with Libya; 

"£ 

4.  'person or body  in Libya means 

(a) the Libyan state or any public authority  thereof ; 

(b) any Libyan national  of person  resident  in Libya. 

(c) any body  having  its registered office or  headquarters  in Libya. 

(d) any body controlled, directly or  indirectly, by one or more of  the 

abovementioned persons or bodies. 

Without  prejudice  to Article  2, performance of a contract  or  transaction 

shall  also be regarded  as having been affected  by  the measures decided on 

pursuant  to United  Nations Security Council  Resolution 883(1993) and 

related  resolutions where  the existence or content  of  the claim  results 

directly or  indirectly  from  those measures. 

Article 2 

1.  It shall  be prohibited  to satisfy or  to take any step  to satisfy a 

claim made by : 

(a) a person or body  in Libya or acting  through a person or body  in 

Libya; 

(b) any person or body  acting, directly or  indirectly, on behalf of or 

for  the benefit of one or more persons or bodies  in Libya; 

(c) any person or body  taking advantage of a transfer  or  rights of, or 

otherwise claiming  through or under, one or more persons or bodies in 

Libya; 

nj 

(d) any other  person or body  referred  to  in paragraph  of United  Nations 

Security Council  Resolution 883  (1993); 

(e) any person or body making  a claim arising  from or  in connection with 

the payment  of a bond or  financial  guarantee or  indemnity  to one or 

more of  the abovementioned persons or bodies, 

under or  in connection with a contract  or  transaction  the performance of 

which was affected, directly or  indirectly, wholly or  in part, by the 

measures decided on pursuant  to United Nations Security  Council 

Resolution 883(1993) and  related  resolutions. 

2.  This prohibition  shall  apply within  the Community  and  to any national 

of a Member  State and any body which  is  incorporated  or constituted 

under  the  law of a Member  State. 

Article 3 

Without  prejudice  to the measures decided on pursuant  to United Nations 

Security Council  Resolution 883  (1993) and  related  resolutions, Article 2 

sha11  not  appI y : 

(a) to claims relating  to contracts or  transactions, with  the exception 

of any bond, financial  guarantee or  indemnity,  in respect  of which 

the persons or bodies referred  to  in the said Article prove  to a 

court  in a Member  State  that  the claim was accepted  by  the parties 

prior  to the adoption of  the measures decided on pursuant  to United 

Nations Security Council  Resolution 883  (1993) and  related 

resolutions, and  that  those measures have had no effect  on the 

existence or content  of  the claim; 

(b) to claims for payment  under  an  insurance contract  In respect  of an 

event  occurring  prior  to the adoption of  the measures  referred  to in 

Article 2 or under  an  insurance contract  where such  insurance  is 

compulsory  under  the  law of a Member  State; 

4M 

(c) to claims  for  payment  of  sums paid  into an account  payment  from which 

was blocked  pursuant  to  the measures  referred  to  in Article  2 

provided  that  such  payment  does not  concern  sums paid under  bonds  in 

respect  of  contracts  referred  to  in the said  Article; 

(d) to claims  relating  to contracts of  employment  subject  to  the  law of 

any Member  State; 

(e) to claims  for  payment  for  goods which  the persons or  bodies  referred 

to  in Article  2 prove  to a court  in a Member  State were  exported 

prior  to  the adoption of  the measures  decided  on  pursuant  to United 

Nations Security  Council  Resolution 883  (1993) and  related 

resolutions  and  that  those measures  have  had  no effect  on  the 

existence or  content  of  the claim; 

(f) to claims  for  sums which  the persons or  bodies  referred  to  in Article 

2 prove  to a court  in a Member  State  are due under  any  loan made 

prior  to  the adoption of  the measures  decided  on on  pursuant  to 

United  Nations Security  Council  Resolution 883  (1993) and  related 

resolutions  and  that  those measures  have  had  no effect  on  the 

existence or  content  of  the  claim, 

provided  that  the claim  includes no amount,  by way of  interest,  charge or 

otherwise,  to compensate  for  the  fact  that  performance  was, as a  result 

of  those measures, not  made  in accordance  with  the  terms of  the  relevant 

contract  or  transaction. 

Article  4 

In any  proceedings  for  the enforcement  of  a claim,  the onus of  proving 

that  satisfying  the claim  is not  prohibited  by Article  2 shall  be on  the 

person  seeking  the enforcement  of  that  claim. 

Article  5 

Each Member  State  shall  determine  the sanctions  to be  imposed  where  the 

provisions of  this Regulation  are  infringed. 

'AS 

Article 6 

This Regulation shall  enter  into force on the day of  its publication  in 

the Official  Journal  of  the European Communities. 

It shall  be applicable as of  1 December  1993, 00.01  hours Eastern 

Standard Time  in New York. 

This Regulation shall  be binding  in  its entirety and directly  applicable 

in all Member  States. 

Done at Brussels 

For  the CounciI 

The President 

4C 

ISSN 0254-1475 

COM(93) 592 final 

DOCUMENTS 

EN 

11 

Catalogue number : CB-CO-93-625-EN-C 

ISBN 92-77-61656-3 

Office for Official Publications of the European Communities 
1^2985 Luxembourg 

^