Proposal for a Council Regulation imposing certain specific restrictive measures directed against certain persons impeding the peace process and breaking international law in the conflict in the Darfur region in Sudan
Date: 2005-04-29
Institutions: European Commission
Subjects: Sudan, economic sanctions, international sanctions, peacekeeping

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 29.4.2005 
COM(2005) 180 final 

2005/0068 (CNS) 

Proposal for a 

COUNCIL REGULATION 

imposing certain specific restrictive measures directed against certain persons impeding 
the peace process and breaking international law in the conflict in the Darfur region in 
Sudan 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

In view of recent developments in Sudan, and notably the continued violations of the 
N’djamena  Ceasefire  agreement  of  8  April  2004  and  the  Abuja  Protocols  of  9 
November  2004  by  all  sides  in  Darfur  and  the  failure  of  the  Government  of  Sudan 
and  rebel  forces  and  all  other  armed  groups  in  Darfur  to  comply  with  their 
commitments and the demands of the Security Council, the United Nations Security 
Council decided on 29 March 2005 to enlarge the scope of the restrictive measures in 
force against Sudan.  

The extended restrictive measures decided by the Security Council in its Resolution 
1591 (2005) include, inter alia, the application, as of 28 April 2005, of the freezing 
of  funds  and  economic  resources  of  persons  designated  by  the  United  Nations  as 
impeding the peace process, constituting a threat to stability in Darfur and the region, 
committing  either  violations  of  international  humanitarian  or  human  rights  law,  or 
other atrocities, violating the arms embargo or being responsible for certain offensive 
military flights. 

The freezing of funds and economic resources of designated persons falls within the 
scope of the Treaty. The proposed measures are similar to those imposed by means 
of  Regulation  (EC)  No  881/2002  imposing  certain  specific  restrictive  measures 
directed  against  certain  persons  and  entities  associated  with  Usama  bin  Laden,  the 
Al-Qaida network and the Taliban, and by means of Regulation (EC) No 1763/2004 
imposing  certain  restrictive  measures  in  support  of  effective  implementation  of  the 
mandate of the International Criminal Tribunal for the former Yugoslavia (ICTY), to 
give but two examples. 

As the freezing of funds and economic resources serves the objective of promoting 
international  peace  and  security,  the  Council  should  adopt  a  Common  Position 
calling for Community action, based on Article 15 of the Treaty on European Union 
(CFSP)  for  the  Regulation  to  be  in  line  with  the  Treaty  establishing  the  European 
Community. 

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2005/0068 (CNS) 

Proposal for a 

COUNCIL REGULATION 

imposing certain specific restrictive measures directed against certain persons impeding 
the peace process and breaking international law in the conflict in the Darfur region in 
Sudan 

THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to Common Position 2005/xxx/CFSP of xx April 2005 concerning restrictive 
measures against Sudan,1 

Having regard to the proposal from the Commission2, 

Having regard to the opinion of the European Parliament3, 

Whereas: 

(1) 

(2) 

In  its  Resolution  1591  (2005)  of  29  March  2005,  the  UN  Security  Council,  acting 
under Chapter VII of the Charter of the United Nations, and deploring strongly that the 
Government  of  Sudan  and  rebel  forces  and  all  other  armed  groups  in  Darfur  have 
failed  to  comply  with  their  commitments  and  the  demands  of  the  Security  Council, 
decided to impose certain additional restrictive measures in respect of Sudan. 

Common  Position  2005/XXX/CFSP  provides,  inter  alia,  for  implementation  of  the 
freezing  of  funds  and  economic  resources  of  those  persons  designated  by  the 
competent  United  Nations  Sanctions  Committee,  who  impede  the  peace  process, 
constitute  a  threat  to  stability  in  Darfur  and  the  region,  commit  violations  of 
international humanitarian or of human rights law or other atrocities, violate the arms 
embargo or are responsible for certain offensive military flights. These measures fall 
within  the  scope  of  the  Treaty  and,  therefore,  in  order  to  avoid  any  distortion  of 
competition,  Community  measures  are  necessary  to  implement  them  as  far  as  the 
Community is concerned. 

(3) 

For  the  purpose  of  this  Regulation,  the  territory  of  the  Community  is  deemed  to 
encompass  the  territories  of  the  Member  States  to  which  the  Treaty  is  applicable, 
under the conditions laid down in that Treaty. 

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OJ L  
OJ C , , p. . 
OJ C , , p. . 

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(4) 

In order to ensure that the measures provided for in this Regulation are effective, this 
Regulation should enter into force on the day of its publication, 

HAS ADOPTED THIS REGULATION: 

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

Article 1 

1. 

2. 

3. 

4. 

5. 

‘Sanctions Committee’ means the Committee of the Security Council of the United 
Nations which was established pursuant to paragraph 3 of UNSCR 1591 (2005); 

‘funds’ means financial assets and benefits of every kind, including but not limited 
to: 

(a) 

cash,  cheques,  claims  on  money,  drafts,  money  orders  and  other  payment 
instruments; 

(b)  deposits with financial institutions or other entities, balances on accounts, debts 

and debt obligations; 

(c) 

(d) 

(e) 

publicly and privately traded securities and debt instruments, including stocks 
and  shares,  certificates  representing  securities,  bonds,  notes,  warrants, 
debentures and derivatives contracts; 

interest, dividends or other income on or value accruing from or generated by 
assets; 

credit,  right  of  set-off,  guarantees,  performance  bonds  or  other  financial 
commitments; 

(f) 

letters of credit, bills of lading, bills of sale; 

(g)  documents evidencing an interest in funds or financial resources; 

(h) 

any other instrument of export-financing; 

‘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; 

‘economic  resources’  means  assets  of  every  kind,  whether  tangible  or  intangible, 
movable or immovable, which are not funds but can be used to obtain funds, goods 
or services; 

‘freezing of economic resources’ means preventing their use to obtain funds, goods 
or services in any way, including, but not limited to, the selling, hiring or mortgaging 
of them. 

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1. 

2. 

3. 

1. 

2. 

Article 2 

All funds and economic resources belonging to, or owned or held by, the natural or 
legal persons, entities or bodies listed in Annex I shall be frozen. 

No funds or economic resources shall be made available, directly or indirectly, to or 
for the benefit of the natural or legal persons or entities listed in Annex I. 

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

Article 3 

By way of derogation from Article 2, and provided they have notified the intention to 
authorise access to such funds and economic resources to the Sanctions Committee 
and  have  not  received  a  negative  decision  by  the  Sanctions  Committee  within  two 
working days of such notification, the competent authorities of the Member States, as 
listed  in  Annex  II,  may  authorise  the  release  of  certain  frozen  funds  or  economic 
resources  or  the  making  available  of  certain  frozen  funds  or  economic  resources, 
under  such  conditions  as  they  deem  appropriate,  after  having  determined  that  the 
funds or economic resources concerned are: 

(a) 

(b) 

necessary  for  basic  expenses,  including  payments  for  foodstuffs,  rent  or 
mortgage,  medicines  and  medical  treatment,  taxes,  insurance  premiums,  and 
public utility charges; 

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; 

By  way  of  derogation  from  Article  2,  and  provided  they  have  notified  that 
determination  to  the  Sanctions  Committee  and  that  the  determination  has  been 
approved  by  that  Committee,  the  competent  authorities  of  the  Member  States,  as 
listed  in  Annex  II,  may  authorise  the  release  of  certain  frozen  funds  or  economic 
resources  or  the  making  available  of  certain  frozen  funds  or  economic  resources, 
after  having  determined  that  the  funds  or  economic  resources  are  necessary  for 
extraordinary expenses. 

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By way of derogation from Article 2, the competent authorities of the Member States listed in 
Annex  II  may  authorise  the  release  of  certain  frozen  funds  or  economic  resources,  if  the 
following conditions are met: 

Article 4 

(a) 

(b) 

(c) 

(d) 

(e) 

the  funds  or  economic  resources  are  subject  of  a  judicial,  administrative  or  arbitral 
lien  established  prior  to  29  March  2005  or  of  a  judicial,  administrative  or  arbitral 
judgment rendered prior to that date; 

the funds or economic resources will be used exclusively to satisfy claims secured by 
such  a  lien  or  recognised  as  valid  in  such  a  judgment,  within  the  limits  set  by 
applicable laws and regulations governing the rights of persons having such claims; 

the lien or judgment is not for the benefit of a person, entity or body listed in Annex 
I; 

recognising the lien or judgment is not contrary to public policy in the Member State 
concerned; 

the  competent  authorities  have  notified  the  lien  or  judgement  to  the  Sanctions 
Committee. 

Article 5 

1. 

Article 2(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  this 
Regulation, 

provided  that  any  such  interest,  other  earnings  and  payments  are  frozen  in 
accordance with Article 2(1). 

2. 

Article  2(2)  shall  not  prevent  the  crediting  of  the  frozen  accounts  by  financial 
institutions that receive funds transferred by third parties to the account of the listed 
person  or  entity,  provided  that  any  such  additions  to  such  accounts  will  also  be 
frozen.  The  financial  institution  shall  inform  the  competent  authorities  about  such 
transactions without delay. 

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Article 7 

1. 

Without  prejudice  to  the  applicable  rules  concerning  reporting,  confidentiality  and 
professional secrecy and to the provisions of Article  284  of the Treaty, natural and 
legal persons, entities and bodies shall: 

(a) 

supply  immediately  any  information  which  would  facilitate  compliance  with 
this  Regulation,  such  as  accounts  and  amounts  frozen  in  accordance  with 
Article 2, to the competent authorities of the Member States listed in Annex II 
where they are resident or located, and shall transmit such information, directly 
or through these competent authorities, to the Commission; 

(b) 

cooperate with the competent authorities listed in Annex II in any verification 
of this information. 

2. 

3. 

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

Any information provided or received in accordance with paragraphs 1 and 2 shall be 
used only for the purposes for which it was provided or received. 

Article 8 

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 implementing it, or its directors or employees, unless it is proved that 
the funds and economic resources were frozen as result of negligence. 

Article 9 

The  Commission  and  Member  States  shall  immediately  inform  each  other  of  the  measures 
taken under this Regulation and shall supply each other with any other relevant information at 
their  disposal  in  connection  with  this  Regulation,  in  particular  information  in  respect  of 
violation and enforcement problems and judgments handed down by national courts. 

Article 10 

1. 

The Commission shall be empowered to: 

(a) 

amend  Annex  I  on  the  basis  of  determinations  made  by  either  the  United 
Nations Security Council or the Sanctions Committee; and 

(b) 

amend Annex II on the basis of information supplied by Member States. 

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2. 

Without  prejudice  to  the  rights  and  obligations  of  the  Member  States  under  the 
Charter of the United Nations, the Commission shall maintain all necessary contacts 
with the Sanctions Committee for the purpose of the effective implementation of this 
Regulation. 

Article 11 

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 sanctions provided for must be effective, proportionate and dissuasive. 

Member States shall notify those rules to the Commission without delay after the entry into 
force of this Regulation and shall notify it of any subsequent amendment. 

Article 12 

This Regulation shall apply  

(a) 

(b) 

(c) 

within  the  territory  of  the  Community,  including  its  airspace  and  on  board  any 
aircraft or any vessel under the jurisdiction of a Member State; 

to any person inside or outside the territory of the Community who is a national of a 
Member State; 

to  any  legal  person,  group  or  entity  which  is  incorporated  or  constituted  under  the 
law of a Member State; 

(d) 

to any legal person, group or entity doing business within the Community. 

Article 13 

This Regulation shall enter into force on the day 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,  

For the Council 
The President 

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List of natural and legal persons or entities referred to in Article 2 

ANNEX I 

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ANNEX II 

List of competent authorities referred to in Articles 3, 4, 5, 6 and 7 

(to be completed by the Member States) 

BELGIUM 

CZECH REPUBLIC 

DENMARK 

GERMANY 

ESTONIA 

GREECE 

SPAIN 

FRANCE 

IRELAND 

ITALY 

CYPRUS 

LATVIA 

LITHUANIA 

LUXEMBOURG 

HUNGARY 

MALTA 

NETHERLANDS 

AUSTRIA 

POLAND 

PORTUGAL 

SLOVENIA 

SLOVAKIA 

FINLAND 

SWEDEN 

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UNITED KINGDOM 

EUROPEAN COMMUNITY 

Commission of the European Communities 

Directorate-General for External Relations 

Directorate CFSP 

Unit A.2: Legal and institutional matters, CFSP Joint Actions, Sanctions, Kimberley Process 

CHAR 12/163 

B - 1049 Bruxelles/Brussel 

Tel. (32-2) 296 25 56 

Fax (32-2) 296 75 63 

Relex-Sanctions@cec.eu.int 

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