Proposal for a Council Regulation (EU) No ../2010 amending Regulation (EC) No 1763/2004 imposing certain restrictive measures in support of effective implementation of the mandate of the International Criminal Tribunal for the former Yugoslavia (ICTY) (presented jointly by the Commission and the High Representative of the EU for Foreign Affairs and Security Policy)
Date: 2010-05-06
Institutions: European Commission
Subjects: International Criminal Tribunal, Yugoslavia, cooperation policy, criminal procedure, economic sanctions, fight against crime, international criminal law

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EUROPEAN COMMISSION 

Brussels, 6.5.2010 
COM(2010)218 final 

2010/0118 (NLE) 

Proposal for a 

COUNCIL REGULATION (EU) No ../2010 

amending Regulation (EC) No 1763/2004 imposing certain restrictive measures in 
support of effective implementation of the mandate of the International Criminal 
Tribunal for the former Yugoslavia (ICTY) 

(presented jointly by the Commission and the High Representative of the EU  
for Foreign Affairs and Security Policy) 

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EXPLANATORY MEMORANDUM 

(1) 

(2) 

Council Regulation (EC) No 1763/2004, as last amended by Commission Regulation 
(EC)  No  895/2008,  imposes  certain  restrictive  measures  in  support  of  effective 
implementation  of  the  mandate  of  the  International Criminal Tribunal for the former 
Yugoslavia (ICTY) in accordance with Common Position 2004/694/CFSP. 

It is appropriate to align Regulation (EC) No 1763/2004 with recent developments in 
sanctions  practice  regarding  drafting  of  provisions  on  freezing  of  funds,  the 
identification of competent authorities, liability for certain infringements, protection of 
personal data and drafting of the article on Union jurisdiction. 

(3) 

For the sake of clarity, several Articles to which amendments need to be made should 
be published in full. 

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2010/0118 (NLE) 

Proposal for a 

COUNCIL REGULATION (EU) No ../2010 

amending Regulation (EC) No 1763/2004 imposing certain restrictive measures in 
support of effective implementation of the mandate of the International Criminal 
Tribunal for the former Yugoslavia (ICTY) 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 215 (2) thereof, 

Having regard to  Council Common Position  2004/694/CFSP  of  11  October  2004  on further 
measures  in  support  of  the  effective  implementation  of  the  mandate  of  the  International 
Criminal Tribunal for the former Yugoslavia (ICTY)1, 

Having  regard  to  the  joint  proposal  from  the  High  Representative  of  the  Union  for  Foreign 
Affairs and Security Policy and the Commission, 

After consulting the European Data Protection Supervisor, 

Whereas: 

(1) 

(2) 

(3) 

Council  Regulation  (EC)  No  1763/2004  of  11  October  2004  imposing  certain 
restrictive  measures  in  support  of  effective  implementation  of  the  mandate  of  the 
International  Criminal  Tribunal  for  the  former  Yugoslavia  (ICTY)2  provides  for  the 
freezing  of  the  funds  and  economic  resources  belonging  to,  or  owned  or  held  by, 
certain  natural  persons  indicted  by  the  ICTY,  in  accordance  with  Common  Position 
2004/694/CFSP. 

It is appropriate to align Regulation (EC) No 1763/2004 with recent developments in 
sanctions  practice  regarding  the  drafting  of  provisions  on  freezing  of  funds,  the 
identification of competent authorities, liability for certain infringements, protection of 
personal data and drafting of the article on Union jurisdiction. For the sake of clarity, 
several Articles to which amendments need to be made should be republished in full. 

This Regulation respects the fundamental rights and observes the principles recognised 
in  particular  by  the  Charter  of  Fundamental  Rights  of  the  European  Union3  and 
notably the right to an effective remedy and to a fair trial, the right to property and the 

1 
2 
3 

OJ L 315, 14.10.2004, p. 52. 
OJ L 315, 14.10.2004, p. 14. 
OJ C 364, 18.12.2000, p. 1. 

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right to protection of personal data. This Regulation should be applied in accordance 
with those rights and principles. 

(4) 

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 data4 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 data5. 

(5) 

Regulation (EC) No 1763/2004 should be amended accordingly, 

HAS ADOPTED THIS REGULATION: 

Article 1 

Regulation (EC) No 1763/2004 is amended as follows: 

(1) 

In Article 1, point 1 is replaced by the following: 

‘funds’ means financial assets and benefits of every kind, including but not limited to:  

(a) 

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

(b)  deposits with financial institutions or other entities, balances on accounts, debts 

and debt obligations; 

(c) 

(d) 

(e) 

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

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

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

(f) 

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

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

(2) 

Article 2 is replaced by the following: 

4 
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OJ L 8, 12.1.2001, p. 1. 
OJ L 281, 23.11.1995, p. 31. 

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“Article 2 

1. 

2. 

3. 

4. 

All  funds  and  economic  resources  belonging  to,  or  owned,  held  or  controlled  by 
natural persons indicted by the ICTY, and 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 any natural person listed in Annex I. 

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

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  who  made  funds  or 
economic resources available, if they did not know, and had no reasonable cause to 
suspect, that their actions would infringe this prohibition.” 

(3) 

Article 3 is replaced by the following: 

“Article 3 

1. 

By  way  of  derogation  from  Article  2,  the  competent  authorities  in  the  Member 
States,  as  indicated  in  the  websites  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 concerned 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  that  the  Member  State 
concerned  has  notified  the  other  Member  States  and  the  Commission  of  the 
grounds on which it considers that a specific authorisation should be granted, at 
least two weeks before the authorisation. 

2. 

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

(4) 

Article 4 is replaced by the following: 

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“Article 4 

1. 

By  way  of  derogation  from  Article  2,  the  competent  authorities  in  the  Member 
States,  as  indicated  in  the  websites  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  are  subject  of  a  judicial,  administrative  or 
arbitral lien established prior to the date on which the natural person referred to 
in Article 2 was included in Annex I or of a judicial, administrative or arbitral 
judgment rendered prior to that date; 

(b)  The  funds  or  economic  resources  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; 

(c)  The lien or judgment is not for the benefit of a person, entity or body listed in 

Annex I; 

(d)  Recognising  the  lien  or  judgment  is  not  contrary  to  public  policy  in  the 

Member State concerned. 

2. 

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

(5) 

Article 6 is replaced by the following: 

“Article 6 

Article 2(2) shall not prevent financial or credit institutions in the Union 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  competent  authorities  about  such  transactions 
without delay.” 

(6) 

Article 7 is replaced by the following: 

“Article 7 

1. 

Without  prejudice  to  the  applicable  rules  concerning  reporting,  confidentiality  and 
professional secrecy, natural and legal persons, entities and bodies shall: 

(a) 

supply immediately the competent authorities indicated in the websites listed in 
Annex  II,  in  the  country  where  they  are  resident  or  located,  with  any 
information  which  would  facilitate  compliance  with  this  Regulation,  such  as 
accounts  and  amounts  frozen  in  accordance  with  Article  2,  and,  directly  or 
indirectly, supply such information to the Commission; and 

(b) 

cooperate  with  the  competent  authorities  indicated  in  the  websites  listed  in 
Annex II in any verification of this information. 

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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.” 

(7) 

The following Article 10a is inserted: 

1. 

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

“Article 10a 

(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 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. 

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; 

(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 5(ii). 

3. 

4. 

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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. 

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 

http://ec.europa.eu/external_relations/cfsp/sanctions/list/consol-list.htm 

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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. 

5. 

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.” 

(8) 

The following Article 11a is inserted: 

“Article 11a 

1. 

2. 

Member States shall designate the competent authorities referred to in Articles 3, 4 
and  7  and  identify  them  in  the  websites  as  listed  in  Annex  II.  Member  States  shall 
notify  the  Commission  of  any  changes  to  the  addresses  of  their  websites  listed  in 
Annex II before such changes take effect. 

Member States shall notify the Commission of their competent authorities, including 
their  contact  details,  by  15  July  2010  and  shall  notify  it  without  delay  of  any 
subsequent amendment.” 

(9) 

Article 12 is replaced by the following: 

This Regulation shall apply: 

“Article 12 

(a) 

(b) 

(c) 

(d) 

(e) 

within the territory of the Union, 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  Union  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 Union.” 

(10) 

Annex II is replaced by the text in the Annex to this Regulation. 

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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ANNEX  

“ANNEX II 

Websites for information on the competent authorities referred to in Articles 3, 4 and 7, 
and address for notifications to the European Commission 

(to be completed by Member States) 

BELGIUM 

BULGARIA 

CZECH REPUBLIC 

DENMARK 

GERMANY 

ESTONIA 

IRELAND 

GREECE 

SPAIN 

FRANCE 

ITALY 

CYPRUS 

LATVIA 

LITHUANIA 

LUXEMBOURG 

HUNGARY 

MALTA 

NETHERLANDS 

AUSTRIA 

POLAND 

PORTUGAL 

ROMANIA 

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SLOVENIA 

SLOVAKIA 

FINLAND 

SWEDEN 

UNITED KINGDOM 

Address for notifications to the European Commission: 

European Commission 

DG External Relations 

Directorate  A.  Crisis  Platform  and  Policy  Coordination  in  Common  Foreign  and  Security 
Policy 

Unit A2. Crisis Response and Peace Building 

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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