Amended proposal for a Council Regulation on specific restrictive measures directed against certain persons and entities with a view to combating international terrorism (presented by the Commission pursuant to Article 250 (2) of the EC-Treaty)
Date: 2001-11-30
Institutions: European Commission
Subjects: account, administrative sanction, natural person, terrorism

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Amended proposal for a Council Regulation on specific restrictive measures directed against
certain persons and entities with a view to combating terrorism (1)

(2002/C 75 E/19)

COM(2001) 713 final (cid:151) 2001/0228(CNS)

(Submitted by the Commission pursuant to Article 250(2) of the EC Treaty on 30 November 2001)

(1) OJ C 25 E, 29.1.2002, p. 474.

INITIAL PROPOSAL

AMENDED PROPOSAL

THE COUNCIL OF THE EUROPEAN UNION,

Unchanged

Having regard to the Treaty establishing the European
Community, and in particular Article 308 thereof,

Having regard to the Treaty establishing the European
Community, and in particular Articles 60, 301 and 308
thereof,

Having regard to the proposal from the Commission,

Unchanged

Having regard to the opinion of the European Parliament,

Whereas:

(1) The European Council at its extraordinary meeting on
21 September 2001 declared that
terrorism is a real
challenge to the world and to Europe and that the fight
the
against
European Union.

terrorism will be a priority objective of

(2) The European Council declared that combating the
funding of
the fight
terrorism is a decisive aspect of
against terrorism and called upon the Council to take
the necessary measures to combat any form of financing
for terrorist activities.

(3) The European Council asked the Council

to evaluate
systematically the European Union’s relations with third
countries in the light of support which those countries
might give to terrorism.

(4) In its Resolution 1373 (2001), the Security Council of the
United Nations decided on 28 September 2001 that all
States should implement a freezing of funds and other
financial assets or economic resources as against persons
who commit, or attempt
terrorist acts or
participate in or facilitate the commission of such acts.

to commit,

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INITIAL PROPOSAL

AMENDED PROPOSAL

(5) In addition, the Security Council decided that measures
should be taken to prohibit
funds and other
financial assets or economic resources would be made
available for the benefit of such persons, and to prohibit
that financial or other related services are rendered for the
benefit of such persons.

that

(6) This Regulation is a measure needed at Community level
judicial
in the

to administrative
and
terrorist organisations

complementary
and
procedures
regarding
European Union and third countries.

(4) The measures provided for in this Regulation, when taken
at the level of the European Union, will ensure a rapid
and more coherent application, and optimal effectiveness
of these measures throughout the Community, while at
the same time preventing a distortion of competition or
negative effects on the functioning of
the common
market.

(7) The measures provided for in this Regulation, when taken
at the level of the European Union, will ensure a rapid
and more coherent application, and optimal effectiveness
of these measures throughout the Community, while at
the same time preventing a distortion of competition or
negative effects on the functioning of
the common
market.

(5) For

the
the purpose of preventing circumvention of
provisions of this Regulation, restrictions should also be
imposed on intra-Community payments and movements
of capital.

Deleted

(6) The measures provided for in this Regulation should not
lead to disproportionate damage to the interests of the
Community and,
therefore, provision should be made
for decisions on exceptions to be taken in accordance
with procedures which minimise
to the
interests of the Community.

risks

the

(8) With a view to protecting the interests of the Community,
where appropriate, a procedure should be laid down to
take specific or general decisions on exceptions.

(7) A procedure should also be provided for amending the

(9) A procedure should also be provided for amending the

annexes to this Regulation.

annexes to this Regulation.

(8) Since the measures necessary for the implementation of
this Regulation are management measures within the
meaning of Article 2 of Council Decision 1999/468/EC
of 28 June 1999 laying down the procedures for the
conferred on the
exercise of
Commission (1), they should be adopted by use of the
management procedure provided for in Article 4 of that
Decision.

implementing powers

(10) Since the measures necessary for the implementation of
this Regulation are management measures within the
meaning of Article 2 of Council Decision 1999/468/EC
of 28 June 1999 laying down the procedures for the
conferred on the
exercise of
Commission (1), they should be adopted by use of the
management procedure provided for in Article 4 of that
Decision.

implementing powers

(9) Circumvention of this Regulation should be countered by
information, and where appro-
additional

remedial measures,

including

an adequate system of
priate,
Community legislation.

(11) Circumvention of this Regulation should be countered by
information, and where appro-
additional

remedial measures,

including

an adequate system of
priate,
Community legislation.

___________
(1) OJ L 184, 17.7.1999, p. 23.

___________
(1) OJ L 184, 17.7.1999, p. 23.

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INITIAL PROPOSAL

AMENDED PROPOSAL

(10) The competent authorities of the Member States should,
where necessary, be empowered to ensure compliance
with this Regulation.

(12) The competent authorities of the Member States should,
where necessary, be empowered to ensure compliance
with this Regulation.

(11) The Member States should lay down rules on sanctions
applicable to infringements of the provisions of this Regu-
they are implemented. Those
lation and ensure that
penalties must be effective, proportionate and dissuasive.
It is desirable that those sanctions can be imposed as from
the date of entry into force of this Regulation.

(13) The Member States should lay down rules on sanctions
applicable to infringements of the provisions of this Regu-
they are implemented. Those
lation and ensure that
penalties must be effective, proportionate and dissuasive.
It is desirable that those sanctions can be imposed as from
the date of entry into force of this Regulation.

(12) The Commission and the Member States should inform
each other of the measures taken under this Regulation
and of other relevant
in
connection with this Regulation.

information at

their disposal

(14) The Commission and the Member States should inform
each other of the measures taken under this Regulation
and of other relevant
in
connection with this Regulation.

information at

their disposal

(13) It is necessary for this Regulation to enter into force as a

(15) It is necessary for this Regulation to enter into force as a

matter of urgency.

matter of urgency.

(14) The Treaty does not provide, for the adoption of this
Regulation, powers other than those under Article 308,

(16) The Treaty does not provide, for the adoption of certain
provisions of this Regulation, powers other than those
under Article 308,

HAS ADOPTED THIS REGULATION:

Unchanged

Article 1

For the purpose of this Regulation, the following definitions
shall apply:

1.

(cid:145)Funds(cid:146) means financial assets and economic benefits of any
kind,
including, but not necessarily limited to, cash,
cheques, claims on money, drafts, money orders and other
payment instruments; deposits with financial institutions or
other entities, balances on accounts, debts and debt obli-
gations; publicly and privately traded securities and debt
instruments, including stocks and shares, certificates repre-
senting securities, bonds, notes, warrants, debentures,
interest, dividends or other income
derivatives contracts;
on or value accruing from or generated by assets; credit,
right of set-off, guarantees, performance bonds or other
financial commitments;
lading,
bills of sale; documents evidencing an interest in funds or
financial resources, and any other instrument of export-
financing.

letters of credit, bills of

1.

(cid:145)Funds(cid:146) means assets of every kind, whether tangible or
intangible, movable or immovable, however acquired, and
legal documents or instruments in any form, including elec-
tronic or digital, evidencing title to, or interest in, such
assets, including, but not limited to, bank credits, travellers
cheques, bank cheques, money orders, shares, securities,
bonds, drafts, letters of credit.

2.

(cid:145)Freezing of funds(cid:146) means preventing any move, transfer,
alteration, use of 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 use of
the funds,
including portfolio management.

Unchanged

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INITIAL PROPOSAL

AMENDED PROPOSAL

3.

(cid:145)Financial services(cid:146) means: any service of a financial nature,
including all insurance and insurance-related services, and
(excluding
all
insurance) as follows:

and other

financial

banking

services

Insurance and insurance-related services

(i) Direct insurance (including co-insurance):

(A) life

(B) non-life

(ii) Reinsurance and retrocession;

(iii) Insurance intermediation, such as brokerage and agency;

(iv) Services auxiliary to insurance, such as consultancy,
actuarial, risk assessment and claim settlement services.

Banking and other financial services (excluding insurance)

(v) Acceptance of deposits and other repayable funds;

(vi) Lending of

credit,
mortgage credit, factoring and financing of commercial
transaction;

including consumer

types,

all

(vii) Financial leasing;

(viii) All payment and money transmission services, including
credit, charge and debit cards, travellers cheques and
bankers drafts;

(ix) Guarantees and commitments;

(x) Trading for own account or for account of customers,
whether on an exchange, in an over-the-counter market
or otherwise, the following:

(A) money market instruments (including cheques, bills,

certificates of deposits);

(B)

foreign exchange;

(C) derivative products including, but not limited to,

futures and options;

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INITIAL PROPOSAL

AMENDED PROPOSAL

(D) exchange

rate

rate
and
including products such as swaps,
agreements;

interest

instruments,
forward rate

(E)

transferable securities;

(F) other negotiable instruments and financial assets,

including bullion.

(xi) Participation in issues of

underwriting
including
(whether publicly or privately)
services related to such issues;

and

all kinds of
placement

securities,
agent
as
and provision of

(xii) Money broking;

(xiii) Asset management,
management,
forms
management, pension fund management,
depository and trust services;

cash
collective

such

all

or

of

as

portfolio
investment
custodial,

(xiv) Settlement and clearing services for financial assets,
including securities, derivative products, and other
negotiable instruments;

(xv) Provision and transfer of

information, and
financial data processing and related software by
suppliers of other financial services;

financial

(xvi) Advisory,

intermediation and other auxiliary financial
services on all the activities listed in subparagraphs (v)
through (xv),
including credit reference and analysis,
investment and portfolio research and advice, advice
on acquisitions and on corporate restructuring and
strategy.

4.

(cid:145)Terrorism(cid:146) means: any of the following acts:

(a) an act which constitutes an offence within the scope of

and as defined in one of the following treaties:

(i) Convention for the Suppression of Unlawful Seizure
of Aircraft, done at The Hague on 16 December
1970;

(ii) Convention for the Suppression of Unlawful Acts
the Safety of Civil Aviation, done at

against
Montreal on 23 September 1971;

(iii) Convention on the Prevention and Punishment of
Internationally Protected Persons,
adopted by the
the United Nations on

Crimes against
including Diplomatic Agents,
General Assembly of
14 December 1973;

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INITIAL PROPOSAL

AMENDED PROPOSAL

(iv) International Convention against

the Taking of
Hostages, adopted by the General Assembly of the
United Nations on 17 December 1979;

(v) Convention on the Physical Protection of Nuclear
Material, adopted at Vienna on 3 March 1980;

(vi) Protocol for the Suppression of Unlawful Acts of
Violence at Airports Serving International Civil
Aviation, supplementary to the Convention for the
Suppression of Unlawful Acts against the Safety of
Civil Aviation, done at Montreal on 24 February
1988;

(vii) Convention for the Suppression of Unlawful Acts
against the Safety of Maritime Navigation, done at
Rome on 10 March 1998;

(viii) Protocol

for

the Suppression of Unlawful Acts
against
the Safety of Fixed Platforms located on
the Continental Shelf, done at Rome on 10 March
1998;

(ix) International Convention for the Suppression of
Terrorist Bombings,
the General
Assembly of the United Nations on 15 December
1997.

adopted by

(b) an act intended to cause death or serious bodily injury
to a civilian, or to any other person not taking part in
the hostilities in a situation of armed conflict, when the
is to
purpose of such act, by its nature or context,
intimidate a population, or to compel a government
or an international organisation to do or to abstain
from doing any act;

(c) an attempt

to commit
subparagraphs (a) and (b);

an act

as

set

forth in

(d) participation as an accomplice in an act as set forth in

subparagraphs (a), (b) and (c);

(e) organising or directing others to commit an act as set

forth in subparagraphs (a), (b) and (c);

(f) intentional contribution to the commission of one or
more acts as set forth in subparagraphs (a), (b) and (c)
by a group of persons acting with a common purpose, if
such contribution is made either

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INITIAL PROPOSAL

AMENDED PROPOSAL

(i) with the aim of furthering the criminal activity or
criminal purpose of the group, where such activity or
purpose involves the commission of an act as set
forth in subparagraphs (a) and (b), or

(ii) in the knowledge of the intention of the group to
commit an act as set forth in subparagraphs (a) and
(b).

5.

(cid:145)Owning a legal person, entity or body(cid:146) means: being in
possession of 50 % or more of the proprietary rights of a
legal person, entity or body, or having a majority interest
therein;

6.

(cid:145)Controlling a legal person, entity or body(cid:146) means any of:

(a) having the right to appoint or remove a majority of the
members of the administrative, management or super-
visory body of a legal person, entity or body;

(b) having appointed solely as a result of the exercise of
one’s voting rights a majority of the members of the
administrative, management or supervisory bodies of a
legal person, entity or body who have held office during
the present and previous financial year;

(c) controlling alone, pursuant to an agreement with other
shareholders in or members of a legal person, entity or
body, a majority of shareholders’ or members’ voting
rights in that legal person, entity or body;

(d) having the right to exercise a dominant influence over a
legal person, entity or body, pursuant to an agreement
entered into with that legal person, entity or body, or to
a provision in its Memorandum or Articles of
legal
Association, where
person, entity or body permits its being subject
to
such agreement or provision;

law governing

that

the

(e) having the power to exercise the right to exercise a
(d), without being

influence referred to at

dominant
the holder of that right;

(f) having the right to use all or part of the assets of a legal

person, entity or body;

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INITIAL PROPOSAL

AMENDED PROPOSAL

(g) managing the business of a legal person, entity or body
on a unified basis, while publishing consolidated
accounts;

(h) sharing jointly and severally the financial liabilities of a
legal person, entity or body, or guaranteeing them.

Article 2

Unchanged

1.

Except as permitted under Articles 7 and 8:

(a) all funds held by a natural or legal person, entity or body

(a) all funds belonging to, or owned or held

listed in Annex I shall be frozen;

(i) by a natural person committing, or attempting to

commit, any act of terrorism;

(ii) by a legal person, entity or body committing, or

attempting to commit, any act of terrorism;

(iii) by a legal person, entity or body owned or controlled by
one or more natural or legal persons, entities or bodies
referred to in subparagraphs (i) and (ii); or

(iv) by a natural or legal person, entity or body facilitating
the commission of acts of terrorism or acting on behalf
of or at the direction of one or more natural or legal
persons, entities or bodies referred to in subparagraphs
(i) and (ii);

shall be frozen, if the natural or legal person, entity or body to
which the funds belong, or by which the funds are owned or
held, is listed in Annex I;

(b) no funds shall be made available, directly or indirectly, to or
for the benefit of a natural or legal person, entity or body
listed in Annex I.

Unchanged

The Council, acting by qualified majority on a proposal

2.
from the Commission, shall adopt amendments to Annex I.

The Council, acting by unanimity on a proposal from the

2.
Commission, shall adopt amendments to Annex I.

3.
The Council shall, at as early a date as possible, amend
the text of the Annex to ensure that names of natural or legal
persons, entities and bodies
listed therein have sufficient
particulars appended to permit effective identification of
specific human beings,
legal persons, entities or bodies, thus
facilitating the exculpation of those bearing the same or similar
names.

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INITIAL PROPOSAL

AMENDED PROPOSAL

Article 3

Unchanged

It shall be prohibited to engage in or to continue the provision
of financial services to or for the benefit of a natural or legal
person, entity or body listed in Annex I.

it shall be
Except as permitted under Articles 7 and 8,
prohibited to engage in or
to continue the provision of
financial services to or for the benefit of a natural or legal
person, entity or body listed in Annex I.

Article 4

Unchanged

The participation, knowingly and intentionally, in related
1.
activities, the object or effect of which is, directly or indirectly,
to circumvent Articles 2 and 3 shall be prohibited.

Any information that the provisions of this Regulation
2.
are being, or have been, circumvented shall be notified to the
competent authorities of the Member States listed in Annex II
and/or to the Commission.

Article 5

Without prejudice to the Community rules concerning confi-
the Treaty, the competent
dentiality and to Article 284 of
authorities of
the Member States shall have the power to
require banks, other financial institutions, insurance companies,
and other bodies, entities and persons to provide all relevant
information necessary for ensuring compliance with this Regu-
lation.

1. Without prejudice to the applicable rules concerning
reporting, confidentiality and professional secrecy and to the
provisions of Article 284 of the Treaty, banks, other financial
institutions,
companies, and other bodies and
persons shall:

insurance

(cid:151) provide immediately any information which would facilitate
compliance with this Regulation, such as accounts and
amounts frozen in accordance with Article 2 and trans-
actions executed pursuant to Articles 7 and 8:

(cid:151) to the competent authorities of the Member States listed
in Annex II where they are resident or located, and

(cid:151) directly or through these competent authorities to the

Commission; and

(cid:151) cooperate with the competent authorities listed in Annex II

in any verification of this information.

2.
Any information directly received by the Commission
shall be made available to the competent authorities of the
Member States concerned.

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INITIAL PROPOSAL

AMENDED PROPOSAL

Article 6

Unchanged

In cases where there exists a reasonable expectation that a
person, company, undertaking,
institution or entity is acting
on behalf or for the benefit of a natural or legal person,
entity or body listed in Annex I, but does not appear on
that
list, any natural or legal person shall, before entering
into activities otherwise prohibited by this Regulation, obtain
written confirmation from the relevant competent authorities
of the Member States listed in Annex II that such a person,
institution or entity is not acting on
company, undertaking,
behalf or for the benefit of a natural or legal person, entity
or body listed in Annex I.

In cases where there exists a reasonable suspicion that a natural
or legal person, entity or body is either engaged in an act of
terrorism, or acting on behalf or for the benefit of a natural or
legal person, entity or body listed in Annex I, but does not
appear on that list, any natural or legal person shall, before
entering into activities otherwise prohibited by this Regulation,
obtain written confirmation from the relevant competent auth-
orities of the Member States listed in Annex II that such a
person, entity or body is deemed to be neither engaged in
any act of terrorism nor acting on behalf or for the benefit
of a natural or legal person, entity or body listed in Annex I.

If
the competent authorities do not provide such written
confirmation within 10 working days, the person, company,
undertaking,
institution or entity shall be deemed not to be
acting on behalf or for the benefit of a natural or legal person,
entity or body listed in Annex I.

If
the competent authorities do not provide such written
conformation within 10 working days, and fail to inform the
requesting person that an investigation which may take up to
two months, will be opened, the natural or legal person, entity
or body shall be deemed not to be acting on behalf or for the
benefit of a natural or legal person, entity or body listed in
Annex I.

competent authorities

immediately inform the
The
Commission of any request received pursuant to this Article
and of their decision on it.

shall

Article 7

Unchanged

Article 2 shall not apply to:

1. payments for essential human needs for be fulfilled within

the Community;

2. addition to frozen accounts of

interest due on those

accounts;

3. payments of funds due under contracts, agreements or obli-
gations which were concluded or arose prior to the entry
into force of this Regulation provided that those payments
are made into a frozen account within the Community.

Article 2 shall not apply to the addition to frozen

1.
accounts of interest due on those accounts.

The competent authorities of the Member States listed in
2.
such
Annex II may grant
conditions as they deem appropriate in order to prevent the
financing of acts of terrorism, for

specific authorisations, under

1. the use of funds for essential human needs to be fulfilled

within the Community;

2. payments due under contracts, agreements or obligations
which were concluded or arose prior to the entry into
force of this Regulation provided that those payments are
made into a frozen account within the Community.

Article 8

Unchanged

Specific or general authorisations to unfreeze funds or to
1.
make funds available with a view to the protection of the
interests of
the Community may be granted in accordance
with the procedure referred to in Article 9(2).

1. With a view to the protection of the interests of the
Community, which include the interests of
its citizens and
residents, specific or general authorisations to unfreeze funds,
to make funds available or to render financial services may be
granted in accordance with the procedure referred to in Article
9(2).

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INITIAL PROPOSAL

AMENDED PROPOSAL

Annex II may be amended in accordance with the same
procedure.

Deleted

2.
Any request by a legal or natural person for an author-
isation referred to in paragraph 1 shall be made to the
Commission directly or through the appropriate competent
authorities of the Member States listed in Annex II.

Unchanged

3.
The Commission shall be empowered, on the basis of
information supplied by Member States, to amend Annex II.

Article 9

Unchanged

The Commission shall be assisted by the committee

1.
instituted by Regulation (EC) No 2271/96.

reference

2. Where
the
management procedure laid down in Articles 4 and 7 of
Decision 1999/468/EC shall apply.

to this paragraph,

is made

The period laid down in Article 4(3) of Decision 1999/468/EC
shall be 10 working days.

Article 10

The committee referred to in Article 9 may examine any
question concerning the
this Regulation
referred to it by the Chairman either on his own initiative or
at the request of a Member State.

application of

Article 11

The Commission and the Member States shall immediately and
fully inform each other of the measures taken under this Regu-
lation and supply each other with the relevant information at
in connection with this Regulation, notably
their disposal
information received in accordance with Articles 4, 5 and 6,
and in respect of violation and enforcement problems or
judgements handed down by national courts.

Article 12

Each Member State shall determine the sanctions
to be
imposed where the provisions of the Regulation are infringed.
Such sanctions shall be effective, proportionate and dissuasive.

Pending the adoption, where necessary, of any legislation to
this end, the sanctions to be imposed where the provisions
of this Regulation are infringed shall be those determined by
the Member States in accordance with Article 13 of Regulation
(EC)
(EC) No
(EC)
No
No 1081/2000 (3), whichever may be more severe.

467/2001 (1), Article
or Article

of Regulation
of Regulation

2488/2000 (2)

8
7

___________
(1) OJ L 67, 9.3.2001, p. 1.
(2) OJ L 287, 14.11.2000, p. 19.
(3) OJ L 122, 24.5.2000, p. 29.

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INITIAL PROPOSAL

Article 13

AMENDED PROPOSAL

This Regulation shall apply:

1. within the territory of

the Community including its

airspace,

2. on board any aircraft or any vessel under the jurisdiction of

a Member State,

3. to any person elsewhere who is a national of a Member

State,

4. to any legal person, entity or body which is incorporated or

constituted under the law of a Member State,

5. to any legal person, entity or body doing business within

the Community.

Article 14

This Regulation shall enter into force on the day of its publi-
cation in the Official Journal of the European Communities.

1.
This Regulation shall enter into force on the day of its
publication in the Official Journal of the European Communities.

The Commission shall present, within a period of one
2.
year from the entry into force of this Regulation, a report on
the impact of this Regulation and, if necessary, make proposals
to amend this Regulation.

This Regulation shall be binding in its entirety and directly
applicable in all Member States.

Unchanged

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LIST OF NATURAL OR LEGAL PERSONS, ENTITIES AND BODIES REFERRED TO IN ARTICLE 2

ANNEX I

1. Al Qaida/Islamic Army

2. Abu Sayyaf Group

3. Armed Islamic Group (GIA)

4. Harakat ul-Mujahidin (HUM)

5. Al-Jihad (Egyptian Islamic Jihad)

6. Islamic Movement of Uzbekistan (IMU)

7. Asbat al-Ansar

8. Salafist group for Call and Combat (GSPC)

9. Libyan Islamic Fighting Group

10. Al-Itihaad al-Islamiya (AIAI)

11. Islamic Army of Aden

12. Usama Bin laden

13. Muhammad Atif (a.k.a. Subhi Abu Sitta, Abu Hafs Al Masri)

14. Sayf al-Adl

15. Shaykh Sai’id (a.k.a. Mustafa Muhammad Ahmad)

16. Abu Hafs the Mauritanian (a.k.a. Mahfouz Ould al-Walid, Khalid Al-Shanqiti)

17. Ibn Al-Shaykh al-Libi

18. Abu Zubaydah (a.k.a. Zayn al-Abidin Muhammad Hussayn, Tariq)

19. Abd al-Hadi al-Iraqi (a.k.a. Abu Abdallah)

20. Ayman al-Zawahiri

21. Thirwat Salah Shihata

22. Tariq Anwar al-Sayyid Ahmad (a.k.a. Fathi, Amr al-Fatih)

23. Muhammad Salah (a.k.a. Nasr Fahmi Nasr Hasanayn)

24. Makhtab Al-Khidamat/Al Kifah

25. Wafa Humanitarian Organization

26. Al Rashid Trust

27. Mamoun Darkazanli Import-Export Company

LIST OF COMPETENT AUTHORITIES REFERRED TO IN ARTICLES 4, 6 AND 8

ANNEX II