CELEX: 52011PC0196
Language: en
Date: 2011-04-05
Title: Joint proposal for a COUNCIL REGULATION concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Iran

|
			
		
		
		52011PC0196
		
			Joint proposal for a COUNCIL REGULATION concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Iran /* COM/2011/0196 final */
			
				
		
		
			
			   	EN
 || EUROPEAN COMMISSION || HIGH REPRESENTATIVE OF THE EUROPEAN UNION FOR FOREIGN AFFAIRS AND SECURITY POLICY 
Brussels, 5.4.2011
COM(2011) 196 final
2011/0079 (NLE)
 
Joint proposal for a
COUNCIL REGULATION
concerning restrictive measures directed
against certain persons, entities and bodies in view of
the situation in Iran
EXPLANATORY MEMORANDUM
(1)              
Council Decision 2011/[…]/CFSP of […] provides
for the adoption of restrictive measures against persons responsible for serious human rights violations in Iran.
(2)              
These measures consist of a freezing of funds
and economic resources of those persons listed in the annex to the CFSP
Decision. The High Representative of the EU for Foreign Affairs and Security
Policy and the Commission propose to give effect to these measures by means of
a Regulation based on Article 215 (2) of the Treaty on the Functioning of the
European Union (TFEU).
2011/0079 (NLE)
Joint proposal for a
COUNCIL REGULATION
concerning restrictive measures directed
against certain persons, entities and bodies in view of
the situation in Iran
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 Decision 2011/[…]/CFSP
of […] concerning restrictive measures directed against certain persons,
entities and bodies in view of the situation in Iran,
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)              
Council Decision 2011/[…]/CFSP of […] provides
for the freezing of funds and economic resources of certain persons responsible for serious human rights violations in Iran. These natural or legal persons, entities and bodies are listed in
the Annex to the Decision.
(2)              
These measures fall within the scope of the
Treaty on the Functioning of the European Union and, therefore, notably 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.
(3)              
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 and the right to the protection of personal data. This
Regulation should be applied in accordance with those rights. 
(4)              
Article 291(2) TFEU provides that, where uniform
conditions for implementing legally binding Union acts such as Regulations
based on Article 215 TFEU are needed, those acts shall confer implementing
powers on the Commission.
(5)              
For the implementation of this Regulation, and
in order to create maximum legal certainty within the Union, the names and
other relevant 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. Any processing of personal data 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 data[1] 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 data[2].
(6)              
In order to ensure that the measures provided
for in this Regulation are effective, this Regulation must enter into force immediately,
HAS ADOPTED THIS REGULATION:
Article 1
For the purposes of this Regulation, the
following definitions shall apply:
(a)          ‘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)          ‘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;
(c)          ‘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;
(d)          ‘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;
(e)          ‘territory of the Union’ means
the territories of the Member States to which the Treaty is applicable, under
the conditions laid down in the Treaty, including their airspace.
Article 2
1.           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. 
2.           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.
3.           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 3
1.           Annex I shall consist of
natural or legal persons, entities and bodies who, in accordance with Article 2(1)
of Council Decision 2011/[…]/CFSP of […], have been identified by the Council
as being persons responsible for serious human rights violations in Iran, or natural
or legal persons, entities or bodies associated with them.
2.           Annex I shall include only
the following information on listed persons:
(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 on which the natural or legal
person, entity or body has been included in Annex;
(c)     the grounds for listing.
3.           Annex I may also include
information on family members of the persons listed, provided that the
inclusion of this information is considered to be necessary in a specific case
for the sole purpose of verifying the identity of the listed natural person in
question.
Article 4
1.           By way of derogation from
Article 2, the competent authorities in 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 5
1.           By way of derogation from
Article 2, the competent authorities in the Member States as 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 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 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;
(c)     the lien or judgment is not for the
benefit of a person, entity or body listed in Annex I; and
(d)     recognising the lien or judgment is
not contrary to public policy in the Member State concerned.
2.           The relevant Member State
shall inform the other Member States and the Commission of any authorisation
granted under paragraph 1.
Article 6
1.           Article 2(2) shall not
apply to the addition to frozen accounts of:
(a)     interest or other earnings on those
accounts; or
(b)     payments 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 2 has been included
in Annex I,
provided that any such interest, other earnings
and payments are frozen in accordance with Article 2(1).
2.           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 relevant competent authority about any such transaction without delay.
Article 7
By way of derogation from Article 2 and
provided that a payment by a person, entity or body listed in Annex I is due
under a contract or agreement that was concluded by, or an obligation that
arose for the person, entity or body concerned, before the date on which that
person, entity or body had been designated, 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, if the following conditions are
met:
(a)          the competent authority concerned
has determined that:
(i)      the funds or economic resources shall
be used for a payment by a person, entity or body listed in Annex I; and
(ii)     the payment is not in breach of
Article 2 (2); and
(b)          the Member State concerned has,
at least two weeks prior to the grant of the authorisation, notified the other
Member States and the Commission of that determination and its intention to
grant an authorisation.
Article 8
1.           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.
2.           The prohibition set out in
Article 2(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 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 Article 2, to the
competent authority in the Member State where they are resident or located, as indicated
on the websites listed in Annex II, and shall transmit such information, either
directly or through the Member States, 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.
Article 11
1.           The Commission shall be
empowered to:
(a)     amend Annex I on the basis of decisions
taken in respect of the Annex to Council Decision 2011/XXX/CFSP; and
(b)     amend Annex II on the basis of
information supplied by Member States.
2.           The Commission shall
communicate its decision to the natural or legal person, entity or body
included in Annex I, either directly, if the address is known, or through the
publication of a notice, providing such natural or legal person, entity or body
with an opportunity to submitt observations.
3.           Any natural or legal
person, entity or body included in Annex I shall have the right to submit
observations to it. Where observations or substantial new evidence are
submitted, the Commission shall review the relevant listing in the light of the
observations and information submitted
by the natural or legal person, entity or body included in Annex I and by the
Member States.
4.           The Commission shall
inform the natural or legal person, entity or body of the outcome of the review.
5.           The Commission shall
process personal data in order to carry out its tasks under this Regulation.
These tasks include: 
(a)     preparing and making amendments of
Annex I to this Regulation; 
(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 website[3];

(c)     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.
6.           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 Annex I to this Regulation. Such data shall not be made public or
exchanged.
7.           For the purposes of this
Regulation, the Commission unit listed in Annex II is designated as
“controller” for the Commission 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.
Article 12
1.           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.
2.           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.
Article 13
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.
Article 14
This Regulation shall apply:
(a)          within the territory of the Union,
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 Union who is a national of a Member State;
(d)          to any legal person, entity or
body which is incorporated or constituted under the law of a Member State;
(e)          to any legal person, entity or
body in respect of any business done in whole or in part within the Union.
Article 15
This Regulation shall enter into force on
the day 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 I
List of natural and legal persons,
entities or bodies referred to in Article 2(1) 
(To be completed by Council)
________________
ANNEX II
List of competent authorities in the
Member States referred to in Articles 4(1), 5(1), 7 and 8(1) 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
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
Foreign Policy Instruments Service
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
[1]               OJ L 8, 12.1.2001, p. 1.
[2]               OJ L 281, 23.11.1995, p. 31.
[3]               http://ec.europa.eu/external_relations/cfsp/sanctions/consol-list_en.htm