Council Common Position 2005/440/CFSP of 13 June 2005 concerning restrictive measures against the Democratic Republic of Congo and repealing Common Position 2002/829/CFSP
Date: 2005-06-13
Institutions: Council of the European Union
Subjects: Democratic Republic of the Congo, common foreign and security policy, international sanctions, military cooperation, military equipment, technical cooperation

L 152/22

EN

Official Journal of the European Union

15.6.2005

(Acts adopted under Title V of the Treaty on European Union)

COUNCIL COMMON POSITION 2005/440/CFSP

of 13 June 2005

concerning restrictive measures against the Democratic Republic of Congo and repealing Common
Position 2002/829/CFSP

THE COUNCIL OF THE EUROPEAN UNION,

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

Whereas:

(1)

(2)

(3)

(4)

(5)

On 21 October 2002, the Council adopted Common
Position 2002/829/CFSP (1) on the supply of certain
equipment
into the Democratic Republic of Congo
imposing an embargo on arms, munitions and military
equipment on the Democratic Republic of Congo (‘DRC’).

On 29 September 2003, the Council adopted Common
Position 2003/680/CFSP amending Common Position
2002/829/CFSP in order to implement United Nations
(‘UNSCR
Security Council Resolution 1493 (2003)
1493 (2003)’) of 28 July 2003 imposing an arms
embargo against the DRC.

On 18 April 2005, the United Nations Security Council
adopted Resolution 1596(2005), (‘UNSCR 1596 (2005)’)
reaffirming the measures imposed by paragraph 20 of
these
and
UNSCR 1493 (2003)
measures are to apply to any recipient in the territory
of the DRC.

providing

that

UNSCR 1596 (2005) also imposes measures to prevent
the entry into or transit through Member States’ terri-
tories of all persons designated by the Committee estab-
lished by paragraph 8 of UNSCR 1533 (2004), here-
inafter referred to as ‘the Sanctions Committee’.

UNSCR 1596 (2005) furthermore imposes a freeze of all
funds, financial assets and economic resources, owned or
controlled, directly or indirectly, by persons designated
by the Sanctions Committee or held by entities owned or
controlled, directly or indirectly, by such persons or by
any persons acting on their behalf or at their direction
and
and provides
economic resources are made available to or for the
benefit of such persons or entities.

that no funds,

financial

assets

(1) OJ L 285, 23.10.2002, p. 1. Common Position as amended by the
Common Position 2003/680/CFSP (OJ L 249, 1.10.2003, p. 64).

(6)

(7)

(8)

It is appropriate to integrate the measures imposed by
Common Position 2002/829/CFSP and the measures to
be imposed pursuant to UNSCR 1596 (2005)
in one
single legal instrument.

Common Position 2002/829/CFSP should therefore be
repealed.

Action by the Community is needed in order
implement certain measures,

to

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 ammu-
nition, military vehicles and equipment, paramilitary equipment
and spare parts for the aforementioned to the 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
including weapons and
and related materiel of all types,
ammunition, military vehicles and equipment, paramilitary
equipment, and spare parts for the aforementioned, directly
or indirectly to any person, entity or body in, or for use in
the DRC;

including in particular grants,

(b) provide financing or financial assistance related to military
loans and export
activities,
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 any person,
entity or body in, or for use in the DRC.

15.6.2005

EN

Official Journal of the European Union

L 152/23

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 solely for support of or use by units of the army
and police of the DRC, provided that the said units:

(i) have completed the process of their integration, or

the
of
Committee.

arms

embargo,

as designated by the Sanctions

The relevant persons are listed in the Annex to this Common
Position.

Article 4

1. Member States
to
prevent the entry into, or transit through, their territories of
the persons referred to in Article 3.

take the necessary measures

shall

(ii) operate under the command, respectively, of the ‘état-
major intégré’ of the Armed Forces or of the National
Police of the DRC, or

Paragraph 1 shall not oblige a Member State to refuse its

2.
own nationals entry into its territory.

(iii) are in the process of their integration, in the territory of
the DRC outside the provinces of North and South Kivu
and the Ituri district.

(b) the supply, sale or transfer of arms and any related materiel
or the provision of technical assistance, 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’).

(c)

the supply, sale or transfer of non-lethal military equipment
intended solely for humanitarian or protective use, or the
provision of assistance and training related to such non-
lethal equipment, provided that such supply or provision
has been notified in advance to the Sanctions Committee.

apply where

Paragraph 1 shall not

3.
the Sanctions
Committee determines in advance and on a case-by-case basis
is justified on the grounds of humanitarian need,
that travel
Sanctions
religious
including
Committee concludes that an exemption would further the
objectives of the Security Council Resolutions, that are peace
and national reconciliation in the DRC and stability in the
region.

or where

obligation,

the

In cases where pursuant to paragraph 3, a Member State
4.
authorises the entry into, or transit through,
its territory of
persons designated by the Sanctions Committee, the authori-
sation shall be limited to the purpose for which it is given
and to the persons concerned thereby.

Article 5

2.
The supply, sale or transfer of arms and related materiel,
referred to in paragraph 1 shall only be made to receiving sites
as designated by the Government of National Unity and Tran-
sition, in coordination with MONUC, and notified in advance to
the Sanctions Committee.

All funds, other financial assets and economic resources
1.
owned or controlled directly or
indirectly by the persons
referred to in Article 3 or held by entities owned or controlled
directly or indirectly by such persons or by any persons acting
on their behalf or at their direction, as identified in the Annex,
shall be frozen.

3.
The supply, sale or transfer of arms and related materiel or
the provision of services, referred to in paragraph 1, shall be
subject to an authorisation granted by the competent authorities
of the Member States.

2.
No funds, financial assets or economic resources shall be
made available directly or indirectly to or for the benefit of such
persons or entities.

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.
against
Member States
misuse of authorisation granted pursuant to paragraph 3 and,
where appropriate, make provisions for repatriation of
the
delivered arms and related materiel.

safeguards

adequate

require

shall

Exemptions may be made for funds, other financial assets

3.
and economic resources which are:

(a) necessary for basic expenses, including payments for food-
stuffs, rent or mortgage, medicines and medical treatment,
taxes, insurance premiums, and public utility charges;

Article 3

In accordance with UNSCR 1596 (2005) restrictive measures
should be imposed against those persons who act in violation

(b) intended exclusively for payment of reasonable professional
incurred expenses associated

fees and reimbursement of
with the provision of legal services;

L 152/24

EN

Official Journal of the European Union

15.6.2005

(c)

intended exclusively for payment of fees or service charges,
in accordance with national
laws, for routine holding or
maintenance of
frozen funds, other financial assets and
economic resources, after notification by the Member
the
concerned to the Sanctions Committee of
State
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;

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

Article 6

The Council shall establish the list contained in the Annex and
implement any modifications thereof on the basis of the deter-
mination made by the Sanctions Committee.

Article 7

(d) necessary for extraordinary expenses, after notification by
the Member State concerned to and approval by the
Sanctions Committee;

This Common Position shall
adoption.

take effect on the date of

its

(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
prior to the date of the UNSCR 1596 (2005), 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.

Paragraph 2 shall not apply to the addition to frozen

4.
accounts of:

Article 8

than
This Common Position shall be reviewed no later
taking into account determi-
12 months after its adoption,
nations of the Security Council in the light of progress accom-
plished in the peace and transition process in the DRC, and
every 12 months thereafter.

Article 9

Common Position 2002/829/CFSP is hereby repealed.

Article 10

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

(a)

interest or other earnings on those accounts; or

Done at Luxembourg, 13 June 2005.

(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,

For the Council
The President

J. ASSELBORN

ANNEX

List of persons and entities referred to in Articles 3, 4 and 5

(Annex to be completed after designation by the Committee established by paragraph 8 of United Nations Security
Council Resolution 1533 (2004).)