Proposal for a Council Regulation imposing certain specific restrictive measures in respect of Guinea
Date: 2009-11-23
Institutions: European Commission
Subjects: Guinea, common foreign and security policy, economic sanctions, financial aid, human rights, international sanctions, political opposition, repression, technical cooperation

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 23.11.2009 
COM(2009) 652 final 

Proposal for a 

COUNCIL REGULATION 

imposing certain specific restrictive measures in respect of Guinea 

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EXPLANATORY MEMORANDUM 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

On  27  October  2009  the  Council  adopted  Common  Position  2009/788/CFSP  in 
response  to  the  violent  crackdown  by  security  forces  on  political  demonstrators  in 
Conakry  on  28  September  2009,  the  reported  human  rights  abuses  following  the 
crackdown  and  the  violent  repression  and  political  stalemate  in  the  country.  The 
Common Position imposed an embargo on the export of arms to Guinea, and imposed 
a  travel  ban  on  42  individuals  named  in  the  Annex  to  the  Common  Position,  being 
members of the ruling NCDD and persons closely associated with them. 

Council  is  preparing  a  subsequent  CFSP  Common  Position  calling  for  additional 
restrictive measures including (i) the freezing of funds and economic resources of the 
individuals  and  entities  listed  in  the  Annex  to  the  Common  Position;  and  (ii)  a 
prohibition  on  the  provision  of  technical  and  financial  assistance  and  other  services 
related to military activities to any person in Guinea.  

These  measures  fall  within  the  scope  of  the  Treaty  establishing  the  European 
Community.  The  Commission  therefore  proposes,  in  anticipation,  a  Regulation 
implementing these restrictive measures. 

The  restrictive  measures  adopted  under  this  Regulation  shall  be  implemented  in  full 
respect of fundamental rights, in particular in light of recent case law of the European 
Court of Justice.  

Several  provisions  of  the  proposed  Regulation  are  taken  from  the  Guidelines  on 
Implementation and Evaluation of Restrictive Measures (Sanctions) in the Framework 
of the EU Common Foreign and Security Policy1.  

The  EU  Best  Practices  for  the  Effective  Implementation  of  Restrictive  Measures2 
provide additional guidance for the application of the proposed measures. 

1 
2 

Council document No 15114/05. 
Council document No 8666/1/08. 

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Proposal for a 

COUNCIL REGULATION 

imposing certain specific restrictive measures in respect of Guinea 

THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to Council Common Position 2009/……/CFSP of [……]concerning restrictive 
measures against Guinea, 

Having regard to the proposal from the Commission, 

After consulting the European Data Protection Supervisor, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

Common Position 2009/…./CFSP provides for certain restrictive measures concerning 
members  of  the  National  Council  for  Democracy  and  Development  (NCDD)  and 
individuals  associated  with  them,  responsible  for  the  violent  repression  of  28 
September 2009 or the political stalemate in the country 

These measures include the freezing of funds and economic resources of the natural or 
legal persons, entities and bodies listed in the Annex to the Common Position as well 
as  a  prohibition  on  the  provision  of  technical  and  financial  assistance  and  other 
services related to military activities to any person in Guinea or for use in Guinea.  

These  measures  fall  within  the  scope  of  the  Treaty  establishing  the  European 
Community and, therefore, notably with a view to ensuring their uniform application 
by  economic  operators  in  all  Member  States,  Community  legislation  is  necessary  in 
order to implement them as far as the Community is concerned. 

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

For the implementation of this Regulation some personal data concerning natural and 
legal persons, entities and bodies whose funds and economic resources must be frozen 
in accordance with this Regulation must be made public and treated in an appropriate 
manner  under  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 

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movement  of  such  data3  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 data4.  

Provision  should  be  made  for  the  handling  of  classified  information  at  the 
Commission. 

In order to ensure that the measures provided for in this Regulation are effective, this 
Regulation must enter into force immediately, 

(6) 

(7) 

HAS ADOPTED THIS REGULATION: 

Article 1 

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

(a) 

‘technical  assistance’  means  any  technical  support  related  to  repairs,  development, 
manufacture, assembly, testing, maintenance, or any other technical service, and may 
take forms such as instruction, advice, training, transmission of working knowledge 
or skills or consulting services; including verbal forms of assistance; 

(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)  financial instruments listed in section C of Annex I of Directive 2004/39/EC of 
the  European  Parliament  and  of  the  Council  of  21  April  2004  on  markets  in 
financial instruments (OJ L 145, 30.4.2004, p1); 

(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; 

(c) 

‘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; 

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OJ L 8, 12.1.2001, p.1. 
OJ L 281, 23.11.1995, p.31. 

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(d) 

(e) 

(f) 

‘economic  resources’  means  assets  of  every  kind,  whether  tangible  or  intangible, 
movable or immovable, which are not funds but may 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, by selling, hiring or mortgaging 
them; 

‘territory  of  the  Community’  means  the  territories  to  which  the  Treaty  establishing 
the European Community is applicable, under the conditions laid down in the Treaty. 

It shall be prohibited: 

Article 2 

(a) 

(b) 

to provide, directly or indirectly, technical assistance related to military activities, to 
goods and technology listed in the Common Military List of the European Union  5, 
or related to the provision, manufacture, maintenance and use of goods included in 
that list to any natural or legal person, entity or body in, or for use in, Guinea; 

to provide, directly or indirectly, financing or financial assistance related to military 
activities,  or  to  goods  and  technology  listed  in  the  Common  Military  List  of  the 
European Union including in particular grants, loans and export credit insurance, for 
any  sale,  supply,  transfer  or  export  of  such  items,  or  for  any  provision  of  related 
technical  assistance  to  any  natural  or  legal  person,  entity  or  body  in,  or  for  use  in, 
Guinea; 

(c) 

to participate, knowingly and intentionally, in activities, the object or effect of which 
is to circumvent the prohibitions referred to in points (a) and (b) 

Article 3 

1. 

2. 

3. 

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

Annex  I  shall  consist  of  natural  or  legal  persons,  entities  and  bodies  who,  in 
accordance  with  Article  […]  of  Common  Position  2009/…/CFSP,  have  been 
identified by the Council as being: 

(a)  members of the National Council for Democracy and Development (NCDD);  

(b)  natural persons associated with them, responsible for the violent repression of 

28 September 2009 or the political stalemate in Guinea, or 

(c) 

legal persons, entities or bodies associated with natural persons at (a) and (b). 

5 

OJ C 65, 19.3.2009, p. 1. 

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4. 

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 4 

The prohibitions set out in Articles 2(b) and 3(2) shall not give rise to any liability of any kind 
on the part of the natural and legal persons, entities and bodies who made funds or economic 
resources  available  if  they  did  not  know,  and  had  no  reasonable  cause  to  suspect,  that  their 
actions would infringe the prohibition in question. 

Article 5 

1. 

By way of derogation from Article 3, 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  funds  or  economic  resources,  under 
such conditions as they deem appropriate, after having determined that the funds or 
economic resources are: 

(a) 

necessary  to  satisfy  the  basic  needs  of  persons  listed  in  Annex  I,  and  their 
dependent  family  members,  including  payments  for  foodstuffs,  rent  or 
mortgage,  medicines  and  medical  treatment,  taxes,  insurance  premiums,  and 
public utility charges; 

(b) 

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; or 

(d)  necessary  for  extraordinary  expenses,  provided  in  this  case  that  the  Member 
State  has  notified  the  grounds  on  which  it  considers  that  a  specific 
authorisation  should  be  granted  to  all  other  Member  States  and  to  the 
Commission at least two weeks prior to authorisation. 

2. 

The  relevant  Member  State  shall  inform  the  other  Member  States  and  the 
Commission of any authorisation granted under paragraph 1. 

Article 6 

By way of derogation from Article 3, a competent authority listed in Annex II may authorise 
the release of certain frozen funds or economic resources, if the following conditions are met: 

(a) 

the  funds  or  economic  resources  in  question  are  the  subject  of  a  judicial, 
administrative or arbitral lien established prior to the date on which the person, entity 
or  body  referred  to  in  Article  3  was  included  in  Annex  I,  or  of  a  judicial, 
administrative or arbitral judgment rendered prior to that date; 

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(b) 

(c) 

(d) 

the funds or economic resources in question 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; and 

(e) 

the lien or judgment has been notified by the Member State to the Commission. 

Article 7 

1. 

Article 3(2) shall not apply to the addition to frozen accounts of: 

(a) 

interest or other earnings on those accounts; or 

(b)  payments,  and  transfers  of  financial  instruments  due  under  contracts, 
agreements  or  obligations  that  were  concluded  or  arose  before  the  date  on 
which  the  natural  or  legal  person,  entity  or  body  referred  to  in  Article  3  has 
been included in Annex I, 

provided that any such interest, other earnings, payments or financial instruments are 
frozen in accordance with Article 3(1). 

2. 

Article 3(2) shall not prevent financial or credit institutions in the Community from 
crediting  frozen  accounts  where  they  receive  funds  transferred  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 
relevant competent authority about any such transaction without delay. 

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

Article 9 

1. 

Without  prejudice  to  the  applicable  rules  concerning  reporting,  confidentiality  and 
professional secrecy, 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 

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Article 2, to the competent authority listed in Annex II for the country where 
they  are  resident  or  located  and  shall  transmit  such  information,  directly  or 
through the competent authority listed in Annex II, to the Commission; and 

(b) 

co-operate with that competent authority in any verification of this information. 

2. 

Any information provided or received in accordance with this Article shall be used 
only for the purposes for which it was provided or received. 

Article 10 

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. 

1. 

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

Article 11 

(a) 

for  identification  purposes:  surname  and  given  names  (including  alias  names 
and titles, if any); date and place of birth; nationality; passport and identity card 
numbers; tax and social security numbers; sex; address or other information on 
whereabouts; function held or profession;  

(b) 

the date referred to in Articles 6(a) and 7(1)(b); 

(c) 

the grounds for listing such as function or other sufficient due cause. 

2. 

Annex  I  may  also  include  information  on  family  members  of  the  persons  listed, 
provided that the inclusion of this information is necessary in a specific case for the 
sole purpose of verifying the identity of the listed natural person in question. 

1. 

The Commission shall be empowered to: 

Article 12 

(a) 

amend  Annex  I  on  the  basis  of  decisions  taken  in  respect  of  the  Annex  to 
Common Position 2009/…/CFSP; and 

(b) 

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

2. 

3. 

The  Commission  shall  state  individual  and  specific  reasons  for  the  decisions  taken 
pursuant to paragraph 1(a), providing the individual, entity or body concerned with 
an opportunity to express his, her or its view on the matter. 

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

(a) 

preparing amendments of Annex I to this Regulation;  

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(b) 

including the contents of Annex I in the electronic, consolidated list of persons, 
groups  and  entities  subject  to  EU  financial  sanctions  available  on  the 
Commission website6;  

(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. 

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. 

When the Commission receives classified information, it shall treat it in accordance 
with  Commission  Decision  2001/844/EC,  ECSC,  Euratom7  and,  where  applicable, 
the  agreement  on  the  security  of  classified  information  concluded  between  the 
European Union and the submitting State.  

Documents  classified  at  a  level  corresponding  to  ‘TRES  SECRET  UE/EU  TOP 
SECRET’,  ‘SECRET  UE’  or  ‘CONFIDENTIEL  UE’  shall  not  be  released  without 
the consent of the originator. 

Article 13 

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  penalties  provided  for  must  be  effective,  proportionate 
and dissuasive. 

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

4. 

5. 

6. 

7. 

1. 

2. 

Article 14 

Where there is, in this Regulation, a requirement to notify, inform or otherwise communicate 
with the Commission, the address and other contact details to be used for such communication 
shall be those indicated in Annex II. 

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

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This Regulation shall apply: 

Article 15 

(a) 

(b) 

(c) 

(d) 

(e) 

within the territory of the Community, including its airspace; 

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, 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 day of its publication in the Official Journal of 
the European Union. 

Article 16 

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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ANNEX I 

Natural and legal persons, entities and bodies referred to in Article 3 

ANNEX II 

List  of  competent  authorities  referred  to  in  Articles  5,  6,  7(2)  and  9  and  address  for 
notifications to the European Commission 

(To be completed by the Member States)  

A. 

Competent authorities in each Member State: 

BELGIUM 

BULGARIA 

CZECH REPUBLIC 

DENMARK 

GERMANY 

ESTONIA 

IRELAND 

GREECE 

SPAIN 

FRANCE 

ITALY 

CYPRUS 

LATVIA 

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LITHUANIA 

LUXEMBOURG 

HUNGARY 

MALTA 

NETHERLANDS 

AUSTRIA 

POLAND 

PORTUGAL 

ROMANIA 

SLOVENIA 

SLOVAKIA 

FINLAND 

SWEDEN 

UNITED KINGDOM 

B. 

Address for notifications to or other communication with the European Commission: 

European Commission 

DG External Relations  

Directorate A. Crisis Platform and Policy Coordination in CFSP 

Unit A.2. Crisis Management and Conflict Prevention 

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CHAR 12/106 

B-1049 Bruxelles/Brussel  

Belgium 

E-mail: relex-sanctions@ec.europa.eu  

Tel.: (32 2) 295 55 85 

Fax: (32 2) 299 08 73 

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