Proposal for a Council Regulation amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe
Date: 2009-07-29
Institutions: European Commission
Subjects: Zimbabwe, economic sanctions, human rights, international sanctions, military equipment, natural person, technical cooperation

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 29.7.2009 
COM(2009) 395 final 

2009/0111 (CNS) 

Proposal for a 

COUNCIL REGULATION 

amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures 
in respect of Zimbabwe 

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(1) 

(2) 

(3) 

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EXPLANATORY MEMORANDUM 

On 18 February 2002, the Council decided to impose restrictive measures in respect of 
Zimbabwe in response to the serious violations of human rights, including violations 
of  the  freedoms  of  opinion,  association  and  peaceful  assembly  in  that  country 
(Common  Position  2002/145/CFSP).  In  view  of  its  continuing  concern  about  the 
human  rights  situation  in  Zimbabwe,  the  Council  has  adopted  Common  Position 
2004/161/CFSP to extend and amend the restrictive measures in respect of Zimbabwe. 
These measures were last extended by means of Common Position 2009/68/CFSP of 
26 January 2009. 

Article 5(1) of Common Position 2004/161/CFSP stipulated that the freezing of funds 
and  economic  resources  would  apply  to  “individual  members  of  the  Government  of 
Zimbabwe and any natural or legal persons, entities or bodies associated with them” as 
listed  in  the  Annex  to  the  Common  Position.  By  means  of  Common  Position 
2008/632/CFSP  of  31  July  2008  the  Council  broadened  this  scope  by  adding  “any 
other natural or legal persons whose activities seriously undermine democracy, respect 
for human rights and the rule of law in Zimbabwe”. 

Regulation  (EC)  No  314/2004  concerning  certain  restrictive  measures  in  respect  of 
Zimbabwe  implements  the  restrictive  measures  provided  for  in  Common  Position 
2004/161/CFSP, to the extent that they fall within the scope of the Treaty establishing 
the European Community.  

The main purpose of this proposal is to align Regulation (EC) No 314/2004 with the 
amended Common Position 2004/161/CFSP. 

Decisions taken in respect of the Annex to Common Position 2004/161/CFSP state the 
individual and specific grounds for the listing of each natural or legal person, entity or 
body included in that list. The procedure proposed for amending the part of Annex III 
to  Regulation  (EC)  No  314/2004  which  covers  natural  or  legal  persons  whose 
activities seriously undermine democracy, respect for human rights and the rule of law 
in Zimbabwe, and who are not linked to the governing regime of Zimbabwe, should 
include the publication of a notice on how to submit information in order to enable the 
persons,  entities  and  bodies  listed  to  exercise  their  right  to  be  heard.  Following  the 
examination  of  any  information  submitted  by  a  listed  person,  entity  or  body,  the 
Commission  should  take  a  new  decision  in  accordance  with  Regulation  (EC)  No 
314/2004. 

In  order  to  cover  “any  other  natural  or  legal  persons  whose  activities  seriously 
undermine democracy, respect for human right and the rule of law in Zimbabwe”, the 
legal  basis  of  the  proposed  Regulation  must  include  Articles  60,  301  and  308  of  the 
EC Treaty. Indeed, the European Court of Justice held, in its Judgment of 3 September 
2008  in  joined  cased  C-402/05  P  and  C-415/05  P,  Yassin  Abdullah  Kadi  and  Al 
Barakaat International Foundation v. Council, that measures vis-à-vis “third countries” 
in the sense of Articles 60 and 301 of the EC Treaty include the freezing of funds and 
economic  resources  of  the  rulers  of  a  third  country  and  of  individuals  and  entities 
associated with them or controlled, directly or indirectly, by them. These Articles did 
not provide a suitable legal base for the freezing of funds and economic resources of 
individuals  and  entities  not  having  such  a  link  to  the  governing  regime  of  a  third 
country. The Court of Justice accepted, however, that Articles 60, 301 and 308 of the 

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(7) 

(8) 

(9) 

EC  Treaty  constitute  a  sufficient  legal  base  for  the  freezing  of  funds  and  economic 
resources of such individuals and entities. 

A  provision  is  proposed  to  provide  clarity  on  the  handling  of  classified  information 
which  may  be  provided  in  support  of  decisions  taken  in  respect  of  the  Annex  to 
Common Position 2004/161/CFSP. 

Regulation  (EC)  No  45/2001  of  the  European  Parliament  and  of  the  Council  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  data,  protects 
the  right  to  privacy  with  respect  to  the  processing  of  personal  data.  A  provision  is 
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 Regulation (EC) No 314/2004. 

This  proposal  also  comprises  certain  amendments  of  a  technical  nature,  such  as 
aligning  the  definition  of  funds  and  Article  13  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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2009/0111 (CNS) 

Proposal for a 

COUNCIL REGULATION 

amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures 
in respect of Zimbabwe 

THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to Common Position 2004/161/CFSP of 19 February 2004 renewing restrictive 
measures  against  Zimbabwe1  as  amended  by  Common  Position  2008/632/CFSP  of  31  July 
2008  amending  Common  Position  2004/161/CFSP  renewing  restrictive  measures  against 
Zimbabwe2, 

Having regard to the proposal from the Commission, 

Having regard to the opinion of the European Parliament3, 

After consulting the European Data Protection Supervisor, 

Whereas: 

(1) 

(2) 

Regulation  (EC)  No  314/2004  of  19  February  2004  concerning  certain  restrictive 
measures  in  respect  of  Zimbabwe4  implements  several  restrictive  measures  provided 
for  by  Common  Position  2004/161/CFSP,  including  the  freezing  of  funds  and 
economic  resources  of  certain  natural  or  legal  persons,  entities  and  bodies.  It  is 
necessary  to  align  the  scope  of  the  freezing  of  funds  and  economic  resources  of 
Regulation (EC) No 314/2004 with Common Position 2004/161/CFSP as amended by 
Common Position 2008/632/CFSP. 

Decisions taken in respect of the Annex to Common Position 2004/161/CFSP state the 
individual  and  specific  grounds  for  the  listing  of  each  listed  natural  or  legal  person, 
entity  or  body.  The  revised  procedure  for  amending  the  part  of  Annex  III  to 
Regulation (EC) No 314/2004 which covers natural or legal persons whose activities 
seriously  undermine  democracy,  respect  for  human  rights  and  the  rule  of  law  in 
Zimbabwe,  and  who  are  not  linked  to  the  governing  regime  of  Zimbabwe,  should 
include the publication of a notice on how to submit information, in order to enable the 
listed  persons,  entities  and  bodies  to  exercise  their  right  to  be  heard.  Following  the 

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OJ L 50, 20.2.2004, p.66. 
OJ L 205, 1.8.2008, p. 53. 
OJ C , , p. . 
OJ L 55, 24.2.2004, p. 1. 

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(3) 

(4) 

(5) 

(6) 

(7) 

examination  of  any  information  submitted,  the  Commission  should  take  a  new 
decision in accordance with Regulation (EC) No 314/2004. 

In order to implement Common Position 2004/161/CFSP, as amended, this Regulation 
should provide for the freezing of funds and economic resources of natural and legal 
persons, entities and bodies who are not linked to the governing regime of Zimbabwe. 
In view of this, the legal basis of this Regulation should include not only Articles 60 
and 301, but also Article 308 of the EC Treaty, in line with the case-law of the Court 
of Justice. 

Provision  should  be  made  for  dealing  with  classified  information  provided  by  the 
Council or by a State. 

This Regulation respects the fundamental rights and observes the principles recognised 
in  particular  by  the  Charter  of  Fundamental  Rights  of  the  European  Union5  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. 

The purpose of Regulation (EC) No 314/2004 is to bring about an end to the serious 
violations of human rights in Zimbabwe by applying restrictive measures against the 
Government  of  Zimbabwe,  those  who  bear  prime  responsibility  for  and  those  who 
commit  such  violations.  In  order  to  create  maximum  legal  certainty  within  the 
Community, the names and other relevant data with regard to natural or legal persons, 
entities  and  bodies,  whose  funds  and  economic  resources  should  be  frozen  in 
accordance  with  Regulation  (EC)  No  314/2004,  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. 

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 data6 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 data7.  

(8) 

It  is  appropriate  to  align  certain  parts  of  Regulation  (EC)  No  314/2004  with  more 
recent standard wording for Regulations on restrictive measures. 

(9) 

Regulation (EC) No 314/2004 should therefore be amended accordingly, 

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OJ C 364, 18.12.2000, p. 1. 
OJ L 8, 12.1.2001, p. 1. 
OJ L 281, 23.11.1995, p. 31. 

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HAS ADOPTED THIS REGULATION: 

Article 1 

Regulation (EC) No 314/2004 is hereby amended as follows: 

(1) 

Article 1 is amended as follows: 

(a)  Point (b) is replaced by the following: 

“(b)  “funds” means financial assets and benefits of every kind, including but 

not limited to: 

(i) 

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

(ii)  deposits  with  financial  institutions  or  other  entities,  balances  on 

accounts, debts and debt obligations; 

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

(iv) 

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

(v) 

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

(vi) 

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

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

(b)  Point (e) is replaced by the following: 

“(e)  “freezing  of  economic  resources”  means  preventing  their  use  to  obtain 
funds,  goods  or  services  in  any  way,  including,  but  not  limited  to,  by 
selling, hiring or mortgaging them.” 

(2) 

Article 6 is replaced by the following: 

“1.  All funds and economic resources belonging to, owned, held or controlled by 
the  natural  or  legal  persons,  entities  or  bodies  listed  in  Annex  III  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  or  bodies  listed  in 
Annex III. 

3. 

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

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the  Council 

4.  Annex  III  shall  consist  of  natural  and  legal  persons,  entities  and  bodies 
in  accordance  with  Common  Position 
designated  by 
2004/161/CFSP  as  amended.  Annex  III  shall  comprise  a  Part  A  listing 
individual  members  of  the  Government  of  Zimbabwe  and  natural  or  legal 
persons,  entities  or  bodies  associated  with  any  of  them,  and  a  Part  B  listing 
other  natural  or  legal  persons,  entities  or  bodies  whose  activities  seriously 
undermine  democracy,  respect  for  human  rights  and  the  rule  of  law  in 
Zimbabwe. 

5. 

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 or entities concerned, if they did not 
know, and had no reasonable cause to suspect, that their actions would infringe 
this prohibition.” 

(3) 

In Article 7, the following paragraph 3 is added: 

“3.  Article 6(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  or  body, 
provided that any additions to such accounts will also be frozen. The financial 
or  credit  institution  shall  inform  the  competent  authorities  in  the  Member 
States, as listed in Annex II, about such transactions without delay.” 

(4) 

In  Article  11,  the  current  text  is  numbered  as  paragraph  1  and  the  following 
paragraph 2 is added: 

“2.  The Commission shall publish a notice regarding the modalities for submitting 

information in relation to Annex III.” 

(5) 

The following Articles 11a, 11b and 11c are inserted: 

“Article 11a 

1.  Where 

the  Council  decides, 

in  accordance  with  Common  Position 
2004/161/CFSP, to list a natural or legal person, entity or body whose activities 
seriously undermine democracy, respect for human rights and the rule of law in 
Zimbabwe,  and  who  is  not  linked  to  the  governing  regime  of  Zimbabwe  the 
Commission shall  take a provisional decision on the amendment of  Part B of 
Annex III without delay. 

2.  Once this decision has been taken, the Commission shall without delay publish 
a  notice  regarding  the  modalities  for  submitting  information  in  relation  to 
Annex  III,  providing  the  person,  entity  or  body  concerned  an  opportunity  to 
express his, her or its view on the matter. 

3. 

Following  the  examination  of  any  information  submitted  by  the  persons, 
entities  or  bodies  listed  in  Part  B  of  Annex  III,  the  Commission  shall  take  a 
final decision. 

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Article 11b 

1. 

If the Council or a State submits classified information, the Commission shall 
treat such information in accordance with Commission Decision 2001/844/EC, 
ECSC,  Euratom8  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 11c 

1. 

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

(a) 

preparing amendments of Annex III to this Regulation;  

(b) 

consolidating the contents of Annex III in the electronic, consolidated list 
of persons, groups and entities subject to EU financial sanctions available 
on the Commission website9;  

(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  III  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; 

(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 7(2)(b); 

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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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(j) 

the  grounds  for  listing,  if  the  function  is  not  a  sufficient  ground  for 
listing. 

3.  Annex III may also include the following personal data relating to listed natural 
persons, if such data is provided by the Council and is 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 III 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 review of the views on the grounds for listing 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.” 

(6) 

Article 13 is replaced by the following: 

This Regulation shall apply: 

“Article 13 

(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) 

(d) 

(e) 

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

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 

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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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