CELEX: 52013JC0018
Language: en
Date: 2013-05-30
Title: Joint Proposal for a COUNCIL REGULATION amending Regulation (EC) No 329/2007 concerning restrictive measures against the Democratic People’s Republic of Korea

|
			
		
		
		52013JC0018
		
			Joint Proposal for a COUNCIL REGULATION amending Regulation (EC) No 329/2007 concerning restrictive measures against the Democratic People’s Republic of Korea /* JOIN/2013/018 final - 2013/0180 (NLE) */
			
				
		
		
			
			   	EXPLANATORY MEMORANDUM
(1)                   
On 7 March 2013, the United Nations Security
Council (UNSC) adopted Resolution 2094 (2013) in which it condemned the nuclear
test that the Democratic People’s Republic of Korea (“North Korea”) had
conducted on 12 February 2013. The UNSC affirmed the measures it had already
taken in UNSC Resolutions 1718 (2006), 1874 (2009) and 2087 (2013) and decided
that all UN members shall apply additional restrictive measures against North Korea. The additional measures provided for in UNSC Resolution 2094 (2013) include: 
(a)         
asset freeze measures against individuals or
entities acting on behalf of or at the direction of the individuals and
entities which have already been designated, and to entities owned or
controlled by them, including through illicit means;
(b)         
a prohibition on establishment of correspondent
banking relationships with banks and financial institutions in North Korea or
the opening of bank accounts in North Korea;
(c)         
the requirement to inspect cargos originating in
North Korea or destined for North Korea or brokered or facilitated by North
Korea, or by individuals or entities acting on their behalf, where there are
reasonable grounds to believe that the cargo contains prohibited items;
(d)         
a prohibition on aircraft taking off from, landing
in or overflying territory if there are reasonable grounds to believe that the
aircraft contains prohibited items.
(2)                   
In order to implement UNSC Resolution 2094
(2013), the Council adopted Decision 2013/183/CFSP concerning restrictive
measures against the Democratic People’s Republic of Korea repealing Decision
2010/800/CFSP[1],
which provides for action by the European Union in order to implement
additional restrictive measures.
(3)                   
The High Representative for Foreign Affairs and
Security Policy and the Commission propose to implement the restrictive
measures noted above by means of an amendment to Council Regulation 329/2007. 
2013/0180 (NLE)
Joint Proposal for a
COUNCIL REGULATION
amending Regulation (EC) No 329/2007
concerning restrictive measures against the Democratic People’s Republic of Korea
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 215 thereof,
Having regard to the joint proposal from
the High Representative of the Union for Foreign Affairs and Security Policy
and the European Commission,
Whereas:
(1)       Council Regulation (EC) No
329/2007 of 27 March 2007 concerning restrictive measures against the
Democratic Republic of Korea[2],
gives effect to measures provided for in Common Position 2006/795/CFSP of 20
November 2006 concerning restrictive measures against the Democratic People’s
Republic of North Korea[3],
which was later repealed and replaced by Council Decision 2010/800/CFSP of 22
December 2010 concerning restrictive measures against the Democratic People’s
Republic of Korea[4]
(‘North Korea’).
(2)       On 22 April 2013, the
Council adopted Decision 2013/183/CFSP concerning restrictive measures against
the Democratic People’s Republic of Korea and repealing Decision 2010/800/CFSP[5], renewing existing measures and
giving effect to United Nations Security Council (UNSC) Resolution 2094 (2013).

(3)       The restrictive measures
include a prohibition on the transfer of technical training, advice, services
or technical assistance in relation to prohibited items and it is necessary to expand
the scope of that prohibition to include other intermediary services.
(4)       The provision of financial
services to additional persons and entities is prohibited, namely those acting
on behalf of, or at the direction of, designated persons and entities or
entities owned or controlled by them, and it is necessary to add an additional
listing criteria to that effect.
(5)       It is necessary to prohibit
the establishment of new correspondent relationships with banks in North Korea and the maintenance of correspondent relationships with banks in North Korea where there are reasonable grounds to believe that this could contribute to North Korea’s nuclear-related, other weapons of mass destruction-related or ballistic missile-related
programmes or other prohibited activities. Furthermore, financial institutions
of Member States shall be prohibited from opening of bank accounts in North Korea.
(6)       It is necessary to inspect
cargo originating in North Korea or destined for North Korea or brokered or
facilitated by North Korea or its nationals, or by individuals or entities
acting on their behalf, where there are reasonable grounds to believe that the cargo
contains prohibited items. Accordingly, there should be a requirement to submit
pre-arrival and pre-departure information.
(7)       It is necessary to
prohibit any aircraft from taking off from, landing in or overflying the
territory of the Union, if there are reasonable grounds to believe that the
aircraft contains prohibited items.
(8)       These measures fall within
the scope of the Treaty on the Functioning of the European Union and,
therefore, in particular with a view to ensuring their uniform application by
economic operators in all Member States, regulatory action at the level of the Union is necessary in order to implement them.
(9)       Regulation (EC) 329/2007
should therefore be amended accordingly,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 329/2007 is amended as
follows:
(1)                   
Article 3(1)(a) is replaced by the following:
(a)         
“to provide, directly or indirectly, technical
assistance and brokering or other intermediary services related to goods and
technology listed in the EU Common List of Military Equipment or in Annexes I, Ia
and Ib and to the provision, manufacture, maintenance and use of goods listed
in the EU Common List of Military Equipment or in Annexes I, Ia, and Ib to any
natural or legal person, entity or body in, or for use in, North Korea;”
(2)                   
Article 3a is replaced by the following:
“Article 3a
1. To prevent the transfer of goods and
technology which are covered by the EU Common List of Military Equipment or the
supply, sale, transfer, export or import of which is prohibited by this
Regulation, and in addition to the obligation to provide the competent customs
authorities with the pre-arrival and pre-departure information as determined in
the relevant provisions concerning entry and exit summary declarations as well
as customs declarations in Regulation (EEC) No 2913/92[6] and in Regulation (EEC) No
2454/93[7],
the person who provides the information referred to in paragraph 2 of this
Article, shall declare whether the goods are covered by the EU Common List of
Military Equipment or by this Regulation and, where their export is subject to
authorisation, specify the particulars of the export licence granted. 
2. The required additional elements referred to
in this Article shall be submitted either in written form or using a customs declaration
as appropriate. 
3. The provision of
bunkering or ship supply services, or any other servicing of vessels, to North
Korean vessels is prohibited where the providers of the service have
information, including from the competent customs authorities on the basis of
the pre-arrival and pre- departure information referred to in paragraph 1, that
provides reasonable grounds to believe that the vessels carry items whose
supply, sale, transfer or export is prohibited under this Regulation, unless
the provision of such services is necessary for humanitarian purposes.”
(3)                   
Article 5a is amended as follows:
(a)         
In Article 5a(1), points (a) and (b) are
replaced by the following:
“(a) to open a new bank account with a credit or
financial institution domiciled in North Korea or any credit or financial
institution referred to in Article 11a(2);
(b) to establish a new correspondent banking
relationship with a credit or financial institution domiciled in North Korea or
with any credit or financial institution referred to in Article 11a(2);”
(b)         
In Article 5a(1) the following points (c), (d)
and (e) are added:
“(c) to open a new representative office in North Korea, or to establish a new branch or subsidiary, in North Korea; 
(d) to establish a new joint venture with a
credit or financial institution domiciled in North Korea or with any credit or financial
institution referred to in Article 11a(2);
(e) to maintain a correspondent banking
relationship with a credit or financial institution domiciled in North Korea
and any credit or financial institution referred to in Article 11a(2) if there
is information that provides reasonable grounds to believe that this could
contribute to North Korea’s nuclear-related, other weapons of mass
destruction-related or ballistic missile-related programmes, or other
prohibited activities by this Regulation or Decision 2013/88/CFSP.” 
(4)                   
In Article 6 paragraphs 1 to 4 are replaced by
the following:
“1. All funds and economic resources belonging
to, owned, held or controlled by the persons, entities and bodies listed in
Annex IV shall be frozen. Annex IV shall include the persons, entities and
bodies designated by the Sanctions Committee or the UN Security Council in
accordance with paragraph 8(d) of UN Security Council Resolution 1718 (2006), and
paragraph 8 of UN Security Council Resolution 2094 (2013).
2. All funds and economic resources belonging
to, owned, held or controlled by the persons, entities and bodies listed in
Annex V shall be frozen. Annex V shall include persons, entities and bodies not
listed in Annex IV, who, in accordance with paragraph Article 15 (1) point (b)
of Council Decision 2013/183/CFSP, have been identified by the Council:
(a) as responsible for, including through
support or promoting, North Korea’s nuclear-related, other weapons of mass
destruction-related or ballistic missile-related programmes, or persons, entities
or bodies acting on their behalf or at their direction, or persons, entities or
bodies owned or controlled by them, including through illicit means;
(b) as providing financial services or the
transfer to, through or from the territory of the Union, or involving nationals
of Member States or entities organised under their laws, or persons or
financial institutions in the territory of the Union, of any financial or other
assets or resources that could contribute to North Korea’s nuclear-related, other
weapons of mass destruction-related or ballistic missile-related programmes, or
persons, entities or bodies acting on their behalf or at their direction, or persons,
entities or bodies owned or controlled by them; or
(c) as involved in, including through the provision
of financial services, the supply to or from North Korea of arms and related
material of all types, or of items, materials, equipment, goods and technology
which could contribute to North Korea’s nuclear-related, other weapons of mass
destruction-related or ballistic missile-related programmes to North Korea.
Annex V shall be reviewed at regular intervals
and at least every 12 months. 
2a. All funds and economic resources belonging
to, owned, held or controlled by persons, entities or bodies in Annex Va shall
be frozen. Annex Va shall include the persons, entities or bodies not covered
by Annex IV or V who are working on behalf of or at the direction of a person,
entity or body listed in Annex IV or V or persons assisting in the evasion of
sanctions or violating the provisions of this Regulation, of Decision 2013/183/CSFP
as listed in Annex Va.
Annex Va shall be reviewed at regular intervals and at least every 12
months.
3. Annexes IV, V and Va shall include where
available information on listed natural persons for the purpose of identifying
sufficiently the persons concerned.
Such information may include:
(a)          
surname and given names, including alias names
and titles, if any;
(b)         
date and place of birth;
(c)          
nationality;
(d)         
passport and identity card numbers;
(e)          
fiscal and social security numbers;
(f)           
gender;
(g)          
address or other information on whereabouts;
(h)          
function or profession;
(i)            
date of designation.
Annexes IV, V and Va shall also include the
grounds for listing, such as occupation.
Annexes IV, V and Va may also include information
on identification purposes as set out in this paragraph on family members of
the persons listed, provided that this information is necessary in a specific
case for the sole purpose of verifying the identity of the listed natural
person concerned.
4. No funds or economic resources shall be made
available, directly or indirectly, to for the benefit of the natural or legal
persons, entities or bodies listed in Annexes IV, V and Va.” 
(5)                   
Article 7 is replaced by the following:
“Article 7
1. By way of derogation from Article 6, the
competent authorities of the Member States, as indicated on the websites listed
in Annex II, may authorise under such conditions as they deem appropriate, the
release of certain frozen funds or economic resources, or the making available
of certain funds or economic resources, if the following conditions are met:
(a)         
the competent authority concerned has determined
that the funds or economic resources are:
(i)         necessary to satisfy the basic
needs of persons listed in Annex IV, V or Va and their dependent family
members, including payments for foodstuffs, rent or mortgage, medicines and
medical treatment, taxes, insurance premiums and public utility charges;
(ii)         intended exclusively for payment
of reasonable professional fees and reimbursement of incurred expenses
associated with the provision of legal services; or
(iii)        intended exclusively for payment
of fees or services charges for routine holding or maintenance of frozen funds
or economic resources; and
(b)         
where the authorisation concerns a person,
entity and body listed in Annex IV, the Member State concerned has notified the
Sanctions Committee of that determination and its intention to grant an
authorisation, and the Sanctions Committee has not objected to that course of
action within five working days of notification.
2. By way of derogation from Article 6, the competent
authorities of the Member States, as indicated on the websites listed in Annex
II, may authorise the release of certain frozen funds or economic resources or
the making available of certain frozen funds or economic resources, after
having determined that the funds or economic resources are necessary for extraordinary
expense, provided that:
(a)         
where the authorisation concerns a person, entity
or body listed in Annex IV, the Sanctions Committee has been notified of this determination
by the member State concerned and that the determination has been approved by
that Committee, and
(b)         
where the authorisation concerns a person,
entity or body listed in Annex V or Va, the Member State concerned has notified
other Member States and the Commission of the grounds on which it considers
that a specific authorisation should be granted, at least two weeks prior to
the authorisation.
3. The Member State concerned shall inform
other Member States and the Commission of any authorisation granted under
paragraphs 1 and 2.” 
(6)                   
Article 8(c) shall be replaced by the following:
“(c) the lien or judgement is not for the
benefit of a person, entity or body listed in Annexes IV, V or Va.”
(7)                   
Article 11a(1) is replaced by the following:
“1.
Credit and financial institutions which fall within the scope of Article 16
shall, in their activities with credit and financial institutions referred to
in paragraph 2, and in order to prevent such activities contributing to North
Korea’s nuclear-related, other weapons of mass destruction-related or ballistic
missile-related programmes or to prevent other activities prohibited by this
Regulation, or Decision 2013/88/CFSP:
(a)
exercise continuous vigilance over account activity, particularly by means of
their programmes on customer due diligence and obligations related to the
prevention of money-laundering and the financing of terrorism;
(b)
require that in payment instructions all information fields which relate to the
originator and beneficiary of the transaction in question be completed and, if
that information is not supplied, refuse the transaction;
(c) maintain all
records of transactions for a period of five years and make them available to
national authorities on request;
(d) if they suspect or have reasonable grounds
to suspect that funds are related to proliferation financing, promptly report
their suspicions to the financial intelligence unit (FIU) or another competent
authority designated by the Member State concerned, as indicated on the
websites listed in Annex II, without prejudice to Article 3(1) or Article 6.
The FIU or another competent authority shall serve as a national centre for
receiving and analysing suspicious transaction reports regarding potential
proliferation financing. The FIU or other such competent authority shall have
access, directly or indirectly, on a timely basis to the financial,
administrative and law enforcement information that it requires in order to
properly undertake this function, including the analysis of suspicious
transaction reports.”
(8)                   
The following Article shall be inserted: 
“Article 11b
1. Where there are reasonable grounds to
believe that an aircraft may contain items whose supply, sale, transfer or
export is prohibited under Articles 2, 4 or 4a, it shall be prohibited for that
aircraft to:
(a)          
fly over the territory of the Union; or
(b)         
to take off from or land in the territory of the
 Union. 
2. Paragraph 1 shall not restrict aircraft from
making an emergency landing.
3. Paragraph 1 shall not restrict aircraft
registered in an EU Member State from landing for inspection of prohibited
items.
4. It shall be prohibited to participate,
knowingly and intentionally, in activities the object or effect of which is to
circumvent paragraph 1.”
(9)                   
The Annex to this Regulation is inserted as Annex Va to Regulation 329/2007. 
Article 2
This Regulation shall enter into force on
the day following that of its publication in the Official Journal of the
European Union.
This Regulation shall be binding
in its entirety and directly applicable in all Member States.
Done at Brussels, 
                                                                       For
the Council
                                                                       The
President 
ANNEX
"ANNEX
Va”
[1]               OJ L 111, 23.4.2013, p.52.
[2]               OJ L 88, 29.3.2007, p. 1.
[3]               OJ L 322, 22.11.2006, p. 32.
[4]               OJ L 341, 23.12.2010, p. 32.
[5]               OJ L 111, 23.4.2013, p. 52.
[6]               OJ L 302, 19.10.1992, p. 1.
[7]               OJ L 253, 11.10.1993, p. 1.