Council Common Position 2009/138/CFSP of 16 February 2009 concerning restrictive measures against Somalia and repealing Common Position 2002/960/CFSP
Date: 2009-02-16
Institutions: Council of the European Union
Subjects: Somalia, arms trade, common foreign and security policy, international sanctions, military equipment, sale

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Official Journal of the European Union

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COUNCIL COMMON POSITION 2009/138/CFSP

of 16 February 2009

concerning restrictive measures against Somalia and repealing Common Position 2002/960/CFSP

THE COUNCIL OF THE EUROPEAN UNION,

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

and equipment, paramilitary equipment and spare parts for the
aforementioned to Somalia by nationals of Member States or
from the territories of Member States shall be prohibited
whether originating or not in their territories.

Whereas:

(1)

(2)

(3)

(4)

(5)

On 10 December 2002, the Council adopted Common
Position 2002/960/CFSP (1),
following United Nations
Security Council Resolutions
(UNSCR) 733 (1992),
1356 (2001) and 1425 (2002) relating to an arms
embargo against Somalia.

adopted UNSCR 1844 (2008)

the United Nations Security
On 20 November 2008,
Council
introducing
restrictive measures against those who seek to prevent
or block a peaceful political process, or those who
threaten the Transitional Federal
Institutions (TFIs) of
the African Union Mission in Somalia
Somalia or
(AMISOM) by force, or take action that undermines
stability in Somalia or the region.

the sake of clarity,

For
imposed by
Common Position 2002/960/CFSP and those to be
imposed pursuant to UNSCR 1844 (2008) should be
integrated into a single legal instrument.

the measures

Common Position 2002/960/CFSP should therefore be
repealed.

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

to

The direct or indirect supply to Somalia of

technical
2.
advice, financial and other assistance and training related to
military activities, including in particular technical training and
assistance related to the provision, manufacture, maintenance or
use of the items mentioned in paragraph 1, by nationals of
Member States or from the territories of the Member States
shall be prohibited.

3.

Paragraphs 1 and 2 shall not apply to:

(a)

the supply or sale of arms and related material of all types
and to the direct or indirect supply of technical advice,
financial and other assistance and training related to
military activities intended solely for the support of or use
by the AMISOM mission as stipulated in paragraph 4 of
UNSCR 1744 (2007) or for the sole use of States and
regional organisations undertaking measures in accordance
with paragraph 6 of UNSCR 1851 (2008) and paragraph 10
of UNSCR 1846 (2008);

(b) the supply or sale of arms and related material of all types
and to the direct or indirect supply of technical advice
intended solely for
the purpose of helping to develop
security sector
institutions, consistent with the political
process set out in paragraphs 1, 2 and 3 of UNSCR 1744
(2007) and in the absence of a negative decision by the
Committee established by paragraph 11 of UNSCR 751
(1992)
(hereinafter Sanctions Committee) within five
working days of receiving the relevant notification;

HAS ADOPTED THIS COMMON POSITION:

Article 1

1.
types,

The supply or sale of arms and related material of all
including weapons and ammunition, military vehicles

(1) OJ L 334, 11.12.2002, p. 1.

the Union,

(c) supplies of non-lethal military equipment intended solely for
humanitarian or protective use, or of material intended for
institution building programmes of
the
including in the field of
Community or Member States,
security, carried out within the framework of
the Peace
and Reconciliation Process, as approved in advance by the
Sanctions Committee, and to protective clothing, including
flak jackets and military helmets, temporarily exported to
Somalia by United Nations personnel, representatives of the
media and humanitarian and development workers and
associated personnel for their personal use only.

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Article 2

Restrictive measures as provided for in Articles 3, 4(1) and 5(1)
and (2) shall be imposed against persons and entities designated
by the Sanctions Committee:

(b) determines on a case-by-case basis that an exemption would
otherwise further the objectives of peace and national recon­
ciliation in Somalia and stability in the region.

— as engaging in or providing support for acts that threaten
the peace, security or stability of Somalia, including acts that
threaten the Djibouti Agreement of 18 August 2008 or the
political process, or threaten the TFIs or AMISOM by force,

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

— as having acted in violation of the arms embargo and related

measures as referred to in Article 1,

— as obstructing the delivery of humanitarian assistance to
Somalia, or access to, or distribution of, humanitarian
assistance in Somalia.

The relevant persons and entities are listed in the Annex.

Article 3

Member States shall take the necessary measures to prevent the
direct and indirect supply, sale or transfer of weapons and
military equipment and the direct or
supply of
technical assistance or training, financial and other assistance
financial services,
including investment, brokering or other
related to military activities or to the supply, sale, transfer,
manufacture, maintenance or use of weapons and military
equipment, to persons or entities referred to in Article 2.

indirect

Article 4

to
1. Member States
prevent the entry into, or transit through, their territories of
the persons referred to in Article 2.

take the necessary measures

shall

Paragraph 1 shall not oblige a Member State to refuse its

2.
own nationals entry into its territory.

Article 5

1.
All funds and economic resources owned or controlled
directly or indirectly by the persons or entities referred to in
Article 2 or held by entities owned or controlled directly or
indirectly by them or by any persons or entities acting on their
their direction, as designated by the Sanctions
behalf or at
Committee,
and entities
shall be
concerned are identified in the Annex.

frozen. The persons

2.
No funds 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 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;

(b) intended exclusively for the payment of reasonable profes­
sional fees and reimbursement of incurred expenses associ­
ated with the provision of legal services;

Paragraph 1 shall not

3.
Committee:

apply where

the Sanctions

(a) determines on a case-by-case basis that such entry or transit
is justified on the grounds of humanitarian need, including
religious obligation,

(c)

intended exclusively for the payment of
charges,
holding or maintenance of
resources;

in accordance with national

fees or service
routine
laws,
frozen funds and economic

for

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

(e)

lien or
the subject of a judicial, administrative or arbitral
judgment, in which case the funds 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 2, after notification by the Member State concerned
to the Sanctions Committee.

The exemptions referred to in paragraph 3(a), (b) and (c)
4.
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 and economic resources, and
in the absence of a negative decision by the Sanctions
Committee within three working days of such notification.

Paragraph 2 shall not apply to the addition to frozen

5.
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 in accordance with determinations by the Sanctions
Committee.

Article 7

This Common Position shall
adoption.

take effect on the date of

its

Article 8

This Common Position shall be reviewed, amended or repealed
in accordance with relevant decisions of the
as appropriate,
United Nations Security Council.

Article 9

Common Position 2002/960/CFSP is hereby repealed.

Article 10

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

Done at Brussels, 16 February 2009.

For the Council
The President

O. LIŠKA

ANNEX

List of persons and entities referred to in Articles 2, 3, 4 and 5