Proposal for a Council Regulation amending 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
Date: 2009-04-22
Institutions: European Commission
Subjects: economic sanctions, international sanctions, natural person, restriction of liberty, terrorism

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 22.4.2009 
COM(2009) 187 final 

2009/0055 (CNS) 

Proposal for a 

COUNCIL REGULATION 

amending 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 

(presented by the Commission) 

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(1) 

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EXPLANATORY MEMORANDUM 

Since  1999  and  acting  in  accordance  with  Chapter  VII  of  the  Charter  of  the  United 
Nations  (UN),  the  UN  Security  Council  has  applied  sanctions,  and  in  particular  the 
freezing  of  funds  and  economic  resources,  against  the  Taliban,  Al  Qaida  and  Mr 
Usama bin Laden. To that end, the UN established the UN Al Qaida and Taliban list of 
individuals and entities, which is binding  under  international  law  for  all  members  of 
the UN, including all Member States of the European Union.  

On 27 May 2002, the Council adopted 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.  It  implements  some 
elements  of  UN  Security  Council  Resolutions  1267(1999)  and  1390(2002)  and  in 
particular  freezes  the  funds  and  economic  resources  of  individuals  and  entities 
included in a list drawn up by the UN for this purpose. Regulation (EC) No 881/2002 
is  in  line  with  Common  Position  2002/402/CFSP  concerning  restrictive  measures 
against Usama bin Laden, members of the Al-Qaida organisation and the Taliban and 
other individuals, groups, undertakings and entities associated with them. 

On 3 September 2008 the Court of Justice annulled Regulation (EC) No 881/2002, in 
so  far  as  it  concerned  Mr  Yassin  Abdullah  Kadi  and  Al  Barakaat  International 
Foundation. The Court of Justice held that the Community authority deciding to freeze 
the  funds  and  economic  resources  of  an  individual  or  entity  in  accordance  with 
Regulation (EC) No 881/2002 must communicate the grounds on which that decision 
is based to the individual or entity concerned, in order to observe the rights of defence, 
in particular the right to be heard, and the right to judicial review. In order to comply 
with the Court’s judgment the EU sought from the Sanctions Committee the relevant 
statements of reasons on which the two parties were listed and communicated those to 
the parties for comments. Following an evaluation of the comments, the Commission 
adopted  a  new  Regulation  maintaining  Mr  Kadi  and  Al  Barakaat  International 
Foundation on the list of individuals and entities subject to the freezing of funds and 
economic resources (Regulation (EC) No 1190/2008 of 28 November 2008). 

It is considered necessary to amend Regulation (EC) No 881/2002 to codify these new 
elements  and  to  provide  for  a  procedure  respecting  fundamental  rights  that  will  be 
followed  as  regards  individuals  and  entities  newly  listed  by  the  UN.  The  new 
procedure is based on the procedure applied for the purpose of implementing Council 
Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures 
against  certain  persons  and  entities  with  a  view  to  combating  terrorism,  which 
concerns  the  terrorism  list  drawn  up  by  the  EU  itself,  set  out  in  Council  document 
10826/1/27 of 28 June 2007. It would be as follows: 

–  Upon notification by the UN Sanctions Committee of a new listing decision and 
the  statement  of  reasons,  the  Commission  will  take  a  provisional  decision  to 
freeze the funds and economic resources of the individual or entity concerned; 

–  In parallel the Commission will send the statement of reasons to the individual or 
entity  concerned  without  delay,  in  order  to  give  him,  her  or  it  an  opportunity  to 
express his, her or its views; 

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(5) 

(6) 

(7) 

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–  The Commission will examine the views that have been expressed and consult an 
advisory  committee  of  experts  of  the  Member  States  before  taking  the  final 
decision. 

In order to ensure that fundamental rights are respected, it is also necessary to address 
the position of individuals and entities already listed. UN Security Council Resolution 
1822  of  30  June  2008  foresees  a  review  of  all  names  included  in  the  UN  list  on  30 
June 2008. This UN review should be completed by 30 June 2010. 

If  the  UN  decides  to  de-list  an  individual  or  entity,  de-listing  at  Community  level 
should, as before, take place without delay and not be subject to making a request for 
de-listing to a Community Institution. 

Given the subject-matter the United Nations or a third State may deem it necessary to 
provide classified information to the Community Institution in support of the decision 
made. A provision is proposed to provide clarity on the handling of such information. 

A provision is also needed to provide clarity on the applicable rules for processing of 
personal data of listed individuals, and in particular for processing of data relating to 
offences, criminal convictions or security measures under this Regulation. 

This proposal also comprises certain additional provisions, such as updating Article 2a 
of  Regulation  (EC)  No  881/2002  to  take  account  of  paragraph  15  of  UN  Security 
Council  Resolution  1735(2006)  which  extends  the  non-objection  period  that  applies 
when Member States consult the UN on granting of exemptions for basic expenditure, 
to three working days. It also contains certain amendments of a technical nature, such 
as  aligning  the  definition  of  freezing  of  funds  and  Article  11  on  Community 
jurisdiction with the standard wording set out in the Guidelines on implementation and 
evaluation  of  restrictive  measures  (sanctions)  in  the  framework  of  the  EU  Common 
Foreign and Security Policy (Council document 15114/05 of 2 December 2005). 

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2009/0055 (CNS) 

Proposal for a 

COUNCIL REGULATION 

amending 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 

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  2002/402/CFSP  of  27  May  2002  concerning  restrictive 
measures  against  Usama  bin  Laden,  members  of  the  Al-Qaida  organisation  and  the  Taliban 
and other individuals, groups, undertakings and entities associated with them1, 

Having regard to the proposal from the Commission, 

Having regard to the opinion of the European Parliament2, 

After consulting the European Data Protection Supervisor, 

Whereas: 

(1) 

(2) 

(3) 

Common Position 2002/402/CFSP provides, inter alia, that the European Community 
is  to  take  certain  restrictive  measures,  including  the  freezing  of  funds  and  economic 
resources, in accordance with Resolutions 1267 (1999), 1333 (2000) and 1390 (2002) 
of the Security Council of the United Nations. 

The  freezing  of  funds  and  economic  resources  has  been  implemented  by  means  of 
Regulation  (EC)  No  881/2002  of  27  May  2002  imposing  certain  specific  restrictive 
measures  directed  against  certain  persons  and  entities  associated  with  Usama  bin 
Laden, the Al-Qaida network and the Taliban3.  

An article on exceptions was inserted in that Regulation by means of Regulation (EC) 
No 561/2003 of 27 March 20034. The non-objection period referred to in that Article 
should be brought in line with UN Security Council Resolution 1735 of 22 December 
2006. 

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OJ L 139, 29.5.2002, p. 4. 
OJ C , , p. . 
OJ L 139, 29.5.2002, p. 9. 
OJ L 82, 29.3.2003, p. 1. 

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(4) 

(5) 

Following  the  judgment  of  the  Court  of  Justice  of  the  European  Communities  of  3 
September 2008 in Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi 
and  Al  Barakaat  International  Foundation  v.  Council,  Regulation  (EC)  No  881/2002 
should  be  amended  to  provide  for  a  listing  procedure  ensuring  that  the  fundamental 
rights of defence and in particular the right to be heard are respected.  

The  revised  procedure  should  include  providing  to  the  listed  person,  entity,  body  or 
group the reasons for listing as transmitted by the UN Al Qaida and Taliban Sanctions 
Committee,  so  as  to  give  the  listed  person,  entity,  body  or  group  an  opportunity  to 
express  his,  her  or  its  views  on  those  reasons.  The  purpose  of  Regulation  (EC)  No 
881/2002 is to freeze the funds and economic resources of persons, entities, bodies and 
groups included in the Al Qaida and Taliban list drawn up by the UN. As the relevant 
UN Security Council Resolutions provide that such freezing has to take place “without 
delay”,  such  measure  must,  by  its  very  nature,  take  advantage  of  a  surprise  effect. 
Therefore,  the  Commission  should  be  able  to  take  a  provisional  decision  before 
informing the person, entity, body or group concerned of the reasons for listing. The 
reasons  for  listing  should,  however,  be  notified  to  that  person,  entity,  body  or  group 
without undue delay, after that decision has been published, to give the person, entity, 
body  or  group  concerned  an  opportunity  to  make  effectively  his,  her  or  its  point  of 
view known.  

(6) 

Following the examination of any views submitted, a final decision should be adopted 
in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the 
procedures for the exercise of implementing powers conferred on the Commission5.  

(7)  While  the  Commission  should  endeavour  to  notify  the  reasons  for  listing  directly  to 
the person, entity, body or group concerned, such notification may not be possible in 
some cases due to incomplete contact details or the complete absence thereof. In such 
cases, a notice should be published in the Official Journal to inform those concerned 
of the applicable procedures. 

(8) 

(9) 

It is necessary to make provision for a specific procedure concerning persons, entities, 
bodies and groups listed before 3 September 2008, in order to respect their rights of 
defence and in particular their right to be heard. 

Provision should be made for dealing with classified information that may be provided 
by the United Nations or by a State. 

(10)  This Regulation respects the fundamental rights and observes the principles recognised 
in  particular  by  the  Charter  of  Fundamental  Rights  of  the  European  Union6  and 
notably the right to an effective remedy and to a fair trial, the right to property and the 
right to protection of personal data. This Regulation should be applied in accordance 
with those rights and principles. 

(11)  The purpose of Regulation (EC) No 881/2002 is to prevent terrorist crimes, including 
terrorist  financing,  in  order  to  maintain  international  peace  and  security.  In  order  to 
create maximum legal certainty within the Community, the names and other relevant 
data  with  regard  to  natural  or  legal  persons,  entities,  bodies  or  groups,  whose  funds 

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OJ L 184, 17.7.1999, p. 23. 
OJ C 364, 18.12.2000, p. 1. 

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should  be  frozen  in  accordance  with  Regulation  (EC)  No  881/2002  should  be  made 
publicly  known.  Processing  by  the  Commission  of  relevant  data  relating  to  criminal 
offences committed by listed natural persons, and to criminal convictions or security 
measures concerning such persons should be authorised subject to appropriate specific 
safeguards. 

(12)  Any  processing  of  personal  data  of  natural  persons  under  this  Regulation  should 
respect Regulation (EC) No 45/2001 of the European Parliament and of the Council of 
18  December  2000  on  the  protection  of  individuals  with  regard  to  the  processing  of 
personal data by the Community institutions and bodies and on the free movement of 
such data7 and Directive 95/46/EC of the European Parliament and of the Council of 
24  October  1995  on  the  protection  of  individuals  with  regard  to  the  processing  of 
personal data and on the free movement of such data8.  

(13) 

It is appropriate to clarify  the  meaning of certain  words and to  align certain  parts of 
Regulation (EC) No 881/2002 with more recent standard wording for Regulations on 
restrictive measures. 

(14)  Regulation (EC) No 881/2002 should therefore be amended accordingly, 

HAS ADOPTED THIS REGULATION: 

Article 1 

Regulation (EC) No 881/2002 is amended as follows: 

(1) 

Article 1 is amended as follows: 

(a)  Point 3 is replaced by the following: 

“3. 

‘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;” 

(b)  The following points 5 and 6 are added: 

“5. 

6. 

‘group’  means  a  terrorist  group  as  defined  in  Article  2(1)  of  Council 
Framework  Decision  2002/475/JHA  of  13  June  2002  on  combating 
terrorism9. 

‘Sanctions Committee’ means the Committee of the UN Security Council 
established  pursuant  to  UN  Security  Council  Resolution  1267  (1999) 
concerning Al Qaida and the Taliban.” 

(2) 

Article 2 is replaced by the following: 

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OJ L 8, 12.1.2001, p. 1. 
OJ L 281, 23.11.1995, p. 31. 
OJ L 164, 22.6.2002, p. 3. 

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“Article 2 

1.  All funds and economic resources belonging to, owned, held or controlled by a 
natural or legal person, entity, body or group listed in Annex I, shall be frozen.  

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

3.  Annex I shall consist of natural and legal persons, entities, bodies and groups 
designated by the UN Security Council or by the Sanctions Committee. 

4. 

The prohibition set out in paragraph 2 shall not give rise to liability of any kind 
on the part of the natural or legal persons, entities or bodies concerned, if they 
did not know, and had no reasonable cause to suspect, that their actions would 
infringe these prohibitions.” 

(3) 

In Article 2a(1), point (c) is replaced by the following: 

“(c)  (i) 

in the case of a determination under point (a)(i), (ii) or (iii), the Sanctions 
Committee  has  not  objected  to  the  determination  within  three  working 
days of notification; or 

(ii) 

in  the  case  of  a  determination  under  point  (a)  (iv),  the  Sanctions 
Committee has approved the determination.” 

(4) 

The following Article 2b is inserted: 

“Article 2b 

Article 2(2) shall not prevent financial or credit institutions in the Community from 
crediting frozen accounts where they receive funds transferred by third parties to the 
account of a listed natural or legal person, entity, body or group, provided that any 
additions to such accounts will also be frozen. The financial or credit institution shall 
inform the competent authorities about such transactions without delay.” 

(5) 

Article 3 is replaced by the following: 

“Article 3 

Without  prejudice  to  the  powers  of  Member  States  in  the  exercise  of  their  public 
authority,  it  shall  be  prohibited  to  provide,  directly  or  indirectly,  technical  advice, 
assistance or training related to military activities, including in particular training and 
assistance  related  to  the  manufacture,  maintenance  and  use  of  arms  and  related 
materiel  of  all  types,  to  any  natural  or  legal  person,  entity,  body  or  group  listed  in 
Annex I.” 

(6) 

Article 6 is replaced by the following: 

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“Article 6 

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, entity or body implementing it, or its directors 
or employees, unless it is proved that the funds and economic resources were frozen, 
or not made available, as a result of negligence.” 

(7) 

In Article 7, paragraph 1 is replaced by the following: 

“1.  The Commission shall be empowered to: 

(a) 

amend  Annex  I,  where  necessary  in  accordance  with  the  procedure 
referred to in Article 7b(2), and 

(b) 

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

(8) 

The following Articles 7a to 7e are inserted: 

“Article 7a 

1.  Where  the  United  Nations  Security  Council  or  the  Sanctions  Committee 
decides to list a natural or legal person, entity, body or group for the first time, 
the Commission shall, as soon as a statement of reasons has been provided by 
the United Nations, take a provisional decision on the amendment of Annex I 
without delay.  

2.  Once  the  provisional  decision  referred  to  in  paragraph  1  has  been  taken,  the 
Commission  shall  without  delay  communicate  the  statement  of  reasons 
provided by the United Nations, to the person, entity, body or group concerned, 
either directly or through the publication of a notice, providing him, her or it an 
opportunity to express his, her or its views on the matter. 

3. 

The Commission shall take a final decision concerning the person, entity, body 
or  group  concerned  in  accordance  with  the  procedure  referred  to  in  Article 
7b(2). 

4.  Where  the  United  Nations  decide  to  de-list  a  natural  or  legal  person,  entity, 
body or group, or to amend the identifying data of a listed person, entity, body 
or group, the Commission shall amend Annex I accordingly. 

1. 

The Commission shall be assisted by a committee. 

Article 7b 

2.  Where  reference  is  made  to  this  paragraph,  Articles  3  and  7  of  Decision 

1999/468/EC shall apply. 

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Article 7c 

1.  Natural or legal persons, entities, bodies and groups which have been included 
in Annex I before 3 September 2008 and continue to be listed, may present a 
request  for  a  statement  of  reasons  to  the  Commission.  The  request  shall  be 
submitted in writing in an official language of the Community. It shall specify 
a postal address other than a post office box, for the sending of the reply and 
any subsequent correspondence on the matter. 

2.  As  soon  as  the  requested  statement  of  reasons  is  provided  by  the  United 
Nations,  the  Commission  shall  communicate  it  to  the  person,  entity,  body  or 
group  concerned.  If  views  are  submitted,  the  Commission  shall  follow  the 
procedure described in Article 7a(3). 

Article 7d 

1. 

If the United Nations or a State submits classified information, the Commission 
shall treat such information in accordance with Decision 2001/844/EC, ECSC, 
Euratom of 29 November 2001 amending its Internal Rules of Procedure10 and, 
where  applicable,  the  agreement  on  the  security  of  classified  information 
concluded between the European Union and the submitting State.  

2.  Documents classified at a level corresponding to ‘EU Top Secret’, ‘EU Secret’ 
or ‘EU Confidential’ shall not be released without the consent of the originator. 

Article 7e 

1. 

The  Commission  shall  process  personal  data  in  order  to  carry  out  its  tasks 
under this Regulation. These tasks shall include:  

(a) 

preparing amendments of Annex I to this Regulation;  

(b) 

consolidating the contents of Annex I in the electronic, consolidated list 
of persons, groups and entities subject to EU financial sanctions available 
on the Commission website11;  

(c) 

processing of information concerning the grounds for listing; and  

(d)  processing  of  information  on  the  impact  of  the  measures  of  this 
Regulation  such  as  the  value  of  frozen  funds  and  information  on 
authorisations granted by the competent authorities. 

2.  Annex I shall only include the following information on listed natural persons: 

(a) 

surname and given names, including alias names and titles, if any; 

(b)  date and place of birth; 

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OJ L 317, 3.12.2001, p. 1. 
http://ec.europa.eu/external_relations/cfsp/sanctions/list/consol-list.htm 

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(c) 

nationality; 

(d)  passport and ID card numbers; 

(e) 

fiscal and social security numbers; 

(f) 

sex; 

(g) 

address or other information on whereabouts; 

(h) 

function or profession; 

(i) 

the date of designation referred to in Article 2a(4)(b). 

3.  Annex I may also include the following personal data relating to listed natural 
persons, if such data are provided by the United Nations Security Council or by 
the  Sanctions  Committee  and  are  necessary  in  a  specific  case  for  the  sole 
purpose of verification of the identity of the listed natural person in question: 

(a) 

surname and given names of the natural person’s father; 

(b) 

surname and given names of the natural person’s mother. 

The natural persons concerned shall be informed of the use made of their names in 
Annex I in the same manner as the listed natural person. 

4. 

5. 

The  Commission  may  process  relevant  data  relating  to  criminal  offences 
committed  by  listed  natural  persons,  and  to  criminal  convictions  or  security 
measures  concerning  such  persons,  only  to  the  extent  that  such  processing  is 
necessary for the preparation of a statement of reasons and review of the views 
on it expressed by the natural person concerned, subject to appropriate specific 
safeguards. Such data shall not be made public or exchanged. 

For the purposes of this Regulation, the Commission unit listed in Annex II is 
designated  as  “controller”  within  the  meaning  of  Article  2(d)  of  Regulation 
(EC)  No  45/2001,  in  order  to  ensure  that  the  natural  persons  concerned  can 
exercise their rights under Regulation (EC) No 45/2001.” 

(10) 

Article 11 is replaced by the following: 

This Regulation shall apply: 

“Article 11 

(a)  within the territory of the Community, including its airspace; 

(b)  on board any aircraft or any vessel under the jurisdiction of a Member State; 

(c) 

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

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(d) 

(e) 

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

to any legal person, entity or body in respect of any business done in whole or 
in part within the Community.” 

This Regulation shall enter into force on the third day following that of its publication in the 
Official Journal of the European Union. 

Article 2 

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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