CELEX: 51993PC0592(02)
Language: en
Date: 1993-11-23
Title: Proposal for a COUNCIL REGULATION (EC) prohibiting the satisfying of claims with regard to contracts and transactions the performance of which was affected by the United Nations Security Council Resolution 883 (1993) and related resolutions

COMMISSION OF THE EUROPEAN COMMUNITIES
                                                            COM(93) 592 final
                                                            Brussels, 23 November 1993
 m- • *••••:.-
                                               Proposal for a
                                          COUNCIL REGULATION (EC)
                       preventing the supply of certain goods and services to Libya
 R*55S
  Bill
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                                               Proposal for a
                                          COUNCIL REGULATION (EC)
                    prohibiting the satisfying of claims with regard to contracts and
                     transactions the performance of which was affected by the United
                Nations Security Council Resolution 883(1993) and related resolutions
                                       (presented by the Commission)
p&?ej5r
 ---pagebreak---                        Proposal for a
                  COUNCIL REGULATION (EC)
preventing the supply of certain goods and services to Libya
                               A
 ---pagebreak---                         EXPLANATORY MEMORANDUM
1. The Security Council has decided to extend the scope of the embargo
   of Libya in view of the persistent non-compliance by Libya with its
   Resolutions 731 (1992) and 748 (1992).
   The Community has therefore to extend the scope of its Council
   Regulation (EEC) No. 945/92 accordingly.
2. To enhance the transparency of the Community legislation with
   regard to the embargo of Libya, the existing embargo rules and the
   abovementioned extension of the embargo are contained in a
   consolidated form in the new Regulation hereby proposed to the
   Counc iI.
   As a consequence, the proposal also contains the repeal of the
   Regulation (EEC) No. 945/92.
                                  y\ 8L
 ---pagebreak---                                PROPOSAL for a
                     COUNCIL REGULATION (EC) No         /93
                            Of             1993
       preventing the supply of certain goods and services to Libya
 The Council of the European Union
 Having regard to the Treaty establishing the European   Community, and
 in particular Article 228A thereof,
Kaving regard to the common position adopted by the Council of the
Suropean Union on 22 November 1993/
Having regard to the proposal of the Commission/
 Whereas the Community has adopted Council Regulation (EEC) No 945/92 of
 14 April 1992(D in accordance with Resolution 748 (1992) of the
 United Nations Security Council;
 Whereas the United Nations Security Council, in view of the persistent
 non-compliance by Libya with its Resolutions 731 (1992) and 748 (1992)
 and acting under Chapter VII of the Charter of the United Nations, has
 decided in its Resolution 883 (1993) of 11 November 1993 to extend the
 measures decided upon in its Resolution 748 (1992)
whereas the Community, for reasons of transparency, has decided to
incorporate the additional measures within the framework of an all-
embracing Community instrument;
 Whereas under these conditions Council Regulation (EEC) No 945/92 can
 be repealed;
 Whereas the Community legislation, in accordance with Resolutions 748
 (1992) and 883 (1993) of the United Nations Security Council, should
 not affect certain air transport services Justified by significant
 humanitarian needs neither prevent the supply of some emergency
 equipment and equipment and services directly related to civilian air
 traffic control ;
 HAS ADOPTED THIS REGULATION:
  (1) O.J. W L 101 of 15.4.1992, p. 53.
 ---pagebreak--- Article 1
1)  Permission shall be denied to any aircraft to take off from, land
    in or overfly the territory of the Community if it is destined to
    land in or has taken off from the territory of Libya.
2)  Permission shall be granted when the particular flight has been
    approved on grounds of significant humanitarian need by the
    Committee set up pursuant to paragraph 9 of Resolution 748 (1992)
    of the United Nations Security Council.
Article 2
1)  The activities and operation of all Libyan Arab Airlines offices
    shall be prohibited, and their offices be closed completely.
2)  Any commercial transaction with Libyan Arab Airlines shall be
    prohibited, including the honouring or endorsement of any tickets
    or other documents issued by that airline.
Article 3
The provision to Libya, directly or indirectly, of the goods and/or
services listed in the Annex to this Regulation shall be prohibited
Article 4
Funds or other financial resources, derived from the sale or supply of
any petroleum or petroleum product, including natural gas and   natural
gas products, agricultural product or commodity, originating in Libya
and exported therefrom after 1 December 1993, and accruing to any
commercial, industrial or public utility undertaking which is owned or
controlled, directly or indirectly, by the Government or public
authorities of Libya, or any entity, wherever located or organised,
owned or controlled by the Government or public authorities of Libya or
any person identified by the appropriate authorities of the Member
States as acting for the purposes of this Regulation, on behalf
 ---pagebreak--- of the Government or public authorities of Libya or the abovementioned
entities shall be paid into bank accounts which have been opened
exclusively for these funds or financial resources after 1 December
1993.
Article 5
The sale or supply to Libya of products falling under the same tariff
nomenclature codes as the products listed in the Annex but whose sale
or supply is not prohibited under Article 3 shall be subject to prior
authorization to be issued by the competent authorities of the Member
States.
Article 6
This Regulation shall apply notwithstanding any rights or obligations
conferred or imposed by any international agreement or any contract
entered into or any licence or permit granted before 1 December 1993.
Article 7
This Regulation shall apply within the territory of the Community,
 including its air space and in any aircraft or on any vessel under the
 jurisdiction of a Member State, and to any person elsewhere who is a
national of a Member State and any body elsewhere which is incorporated
or constituted under the law of a Member State.
Article 8
Each Member State shall determine the sanctions to be imposed where the
provisions of this Regulations are infringed.
Article 9
Council Regulation (EEC) No 945/92 is hereby repealed
 ---pagebreak--- Article 10
This Regulation shall enter into force on the day of its publication in
the Official Journal of the European Communities,
it shall be applicable as of 1 December 1993, 00.01 hours Eastern
Standard Time in New York.
This Regulation shall be binding in its entirety and directly
applicable in all Member States.
Done at Brussels        1993
 ---pagebreak---                                     ANNEX
Products and services whose supply to Libya is prohibited under Article
3 of this Reguiat ion :
A)
     any aircraft or aircraft components
      any engineering and maintenance servicing of any aircraft or
      aircraft components ;
      advice, assistance or training to Libyan pilots, flight engineers
     or aircraft and ground maintenance personnel associated with the
     operation of aircraft and airfields within Libya ;
      any certification of airworthiness for Libyan aircraft ;
      payment of new claims against existing insurance contracts for
      Libyan aircraft ;
      any new or renewal of direct insurance for Libyan aircraft ;
      with the exception of emergency equipment and equipment and
      services directly related to civilian air traffic control :
          any materials or components destined for the construction,
           improvement or maintenance of Libyan civiI Ian or military
          airfields and associated facilities and equipment, or
          any engineering or other services destined for the maintenance
          of those airfields and associated facilities and equipment ;
B)
 (I) Pumps of medium to large size whose capacity is equal to or larger
      than 350 cubic metres per hour and drivers (gas turbines and
      electric motors) designed for use in the transportation of crude
      oiI and natural gas.
 (I I)Equipment designed for use in crude oil export terminals :
          Loading buoys or single point moorings (SPM)
          Flexible hoses for connection between underwater manifolds
           (PLEM) and single point mooring and floating loading hoses of
           large sizes (from 12' to 16')
          Anchor chains.
 (IiI)Equipment not specially designed for use in crude oil export
 ---pagebreak---     terminals but which because of their large capacity can be used for
    this purpose:
        Loading pumps of large capacity (4000 m3/H) and small head (10
        bars)
        Boosting pumps within the same range of flow rates
        Inline pipe line inspection tools and cleaning devices (ie
        pigging tools) (16' and above)
        Metering equipment of large capacity (1000 m3/H and above).
(IV) Refinery equipment
        Boilers meeting American Society of Mechanical Engineers 1
        standards
        Furnaces meeting American Society of Mechanical Engineers 8
        standards
        Fractionation columns meeting American Society of Mechanical 8
        standards
        Pumps meeting American Petroleum Institute 610 standards
        Catalytic reactors meeting American Society of Mechanical
        Engineers 8 standards
        Prepared catalysts, including the following :
    Catalysts containing platinum Catalysts containing Molybdenum
V.  Spare parts destined for the items in (I) to (IV) above.
 ---pagebreak---                               Proposal for a
                         COUNCIL REGULATION (EC)
    prohibiting the satisfying of claims with regard to contracts and
     transactions the performance of which was affected by the United
Nations Security Council Resolution 883(1993) and related resolutions
                                 2
 ---pagebreak---                          EXPLANATORY MEMORANDUM
1. The Security Council of the United Nations adopted Resolution
   883(1993), extending the embargo of Libya.
   Paragraph 8 of Resolution 883 1993 prohibits the satisfying of claims
   with regard to contracts and transactions, the performance of which
   was affected by the Resolution 883 (1993) and related resolutions.
2. The formulation of paragraph 8 of UNSC Resolution 883(1993) follows,
   mutatis mutandis, the formulation of paragraph 29 of UNSC Resolution
   687(1991), dealing with such claims by Iraq.
3. The Community has implemented paragraph 29 of UNSC Resolution
   687(1991), by adopting Council Regulation (EEC) No 3541/92 of 7
   December 1992.
4. The present proposal for a Council Regulation aims at implementing
   paragraph 8 of UNSC Resolution 883 (1993), and given the
   abovementioned similarity between paragraphs 29 and 8 of the
   respective UNSC Resolutions, the present proposal follows, mutatis
   mutandis, the formulation of Council Regulation (EEC) 3541/92.
                                    3
 ---pagebreak---                                 PROPOSAL for a
                  COUNCIL REGULATION (EC) N'     /93 of
     prohibiting the satisfying of claims with regard to contracts and
      transactions the performance of which was affected by the United
Nations Security Council Resolution 883(1993) and related resolutions
THE COUNCIL
Having regard to the Treaty establishing the European Community, and in
particular Article 228A thereof,
E^-ving regard to the common position adopted by the Council of the
European Union on 22 November 1993;
Having regard to the proposal of the Commission
Whereas, under Regulation (EEC) N* 945/92( 1 ), and No (EC).. . / 9 3 ^ ^ the
 Community has taken measures to prevent certain trade between the
 Community and Libya.
Whereas, as a consequence of the embargo against Libya, the economic
operators in the Community and third countries are exposed to the risk of
 claims by Libya;
 Whereas the United Nations Security Council has adopted Resolution
 883(1993) of 11 November 1993 which, in its paragraph 8, deals with
 claims by Libya in relation to contracts and transactions the performance
 of which was affected by measures imposed by the Security Council
 pursuant to Resolution 883(1993) and related resolutions;
 (1) OJ No L 101 of 15.4.1992, p.53
 (2) OJ L ... of        1993, p. ..
                                        -7o
 ---pagebreak--- Whereas it is necessary to protect operators permanently against such
claims and to prevent Libya from obtaining compensation for the negative
effects of the embargo;
Whereas the Community and its Member States   have agreed that Libya must
comply in full with the provisions of paragraph 8 of United Nations
Security Council Resolution 883(1993) and consider that, in deciding
whether to reduce or lift measures taicen against Libya, particular
account must be taken of any failure by Libya to comply with paragraph 8
of the Resolution 883(1993);
HAS ADOPTED THIS REGULATION
                             1  S)
 ---pagebreak---                                   Article 1
For the purposes of this Regulation :
1.  'contract or transaction' means any transaction of whatever form and
    whatever the applicable law, whether comprising one or more contracts
    or similar obligations made between the same or different parties;
    for this purpose 'contract' includes a bond, financial guarantee and
    indemnity or credit whether legally independent or not and any
    related provision arising under or in connection with the
    transact ion;
2.  'claim' means any claim, whether asserted by legal proceedings or
    not, made before or after the date of entry into force of this
    Regulation, under or in connection with a contract or transaction,
    and in particular includes :
(a) a claim for performance of any obligation arising under or in
    connection with a contract or transaction;
(b) a claim for extension or payment of a bond, financial guarantee or
     indemnity of whatever form-,
(c) a claim for compensation in respect of a contract or transaction;
(d) a counterclaim
(e) a claim for the recognition or enforcement, including by the
    procedure of exequatur, of a Judgement, an arbitration award or an
    equivalent decision, wherever made or given;
3.   'measures decided on pursuant to United Nations Security Council
    Resolution 883(1993) and related resolutions' means measures of the
    United Nations Security Council or measures introduced by the
    European Communities or any State, country or international
    organization in conformity with, as required by, or in connection
    with the implementation of relevant decisions of the United Nations
    Security Council, or any action including any military action,
    authorized by the United Nations Security Council, in respect of the
    prevention of certain trade with Libya;
                                      "£
 ---pagebreak--- 4.   'person or body in Libya means
(a) the Libyan state or any public authority thereof ;
(b) any Libyan national of person resident in Libya.
(c) any body having its registered office or headquarters in Libya.
(d) any body controlled, directly or indirectly, by one or more of the
    abovementioned persons or bodies.
Without prejudice to Article 2, performance of a contract or transaction
shall also be regarded as having been affected by the measures decided on
pursuant to United Nations Security Council Resolution 883(1993) and
related resolutions where the existence or content of the claim results
directly or indirectly from those measures.
                                 Article 2
1.   It shall be prohibited to satisfy or to take any step to satisfy a
    claim made by :
(a) a person or body in Libya or acting through a person or body in
    Libya;
(b) any person or body acting, directly or indirectly, on behalf of or
    for the benefit of one or more persons or bodies in Libya;
(c) any person or body taking advantage of a transfer or rights of, or
    otherwise claiming through or under, one or more persons or bodies in
    Libya;
                                      nj
 ---pagebreak--- (d) any other person or body referred to in paragraph of United Nations
    Security Council Resolution 883 (1993);
(e) any person or body making a claim arising from or in connection with
    the payment of a bond or financial guarantee or indemnity to one or
    more of the abovementioned persons or bodies,
under or in connection with a contract or transaction the performance of
which was affected, directly or indirectly, wholly or in part, by the
measures decided on pursuant to United Nations Security Council
Resolution 883(1993) and related resolutions.
2.  This prohibition shall apply within the Community and to any national
    of a Member State and any body which is incorporated or constituted
    under the law of a Member State.
                                 Article 3
Without prejudice to the measures decided on pursuant to United Nations
Security Council Resolution 883 (1993) and related resolutions, Article 2
sha11 not appI y :
(a) to claims relating to contracts or transactions, with the exception
    of any bond, financial guarantee or indemnity, in respect of which
     the persons or bodies referred to in the said Article prove to a
    court in a Member State that the claim was accepted by the parties
    prior to the adoption of the measures decided on pursuant to United
    Nations Security Council Resolution 883 (1993) and related
    resolutions, and that those measures have had no effect on the
    existence or content of the claim;
(b) to claims for payment under an insurance contract In respect of an
    event occurring prior to the adoption of the measures referred to in
    Article 2 or under an insurance contract where such insurance is
    compulsory under the law of a Member State;
                                   4M
 ---pagebreak--- (c) to claims for payment of sums paid into an account payment from which
    was blocked pursuant to the measures referred to in Article 2
    provided that such payment does not concern sums paid under bonds in
    respect of contracts referred to in the said Article;
(d) to claims relating to contracts of employment subject to the law of
    any Member State;
(e) to claims for payment for goods which the persons or bodies referred
    to in Article 2 prove to a court in a Member State were exported
    prior to the adoption of the measures decided on pursuant to United
    Nations Security Council Resolution 883 (1993) and related
    resolutions and that those measures have had no effect on the
    existence or content of the claim;
(f) to claims for sums which the persons or bodies referred to in Article
    2 prove to a court in a Member State are due under any loan made
    prior to the adoption of the measures decided on on pursuant to
    United Nations Security Council Resolution 883 (1993) and related
    resolutions and that those measures have had no effect on the
    existence or content of the claim,
provided that the claim includes no amount, by way of interest, charge or
otherwise, to compensate for the fact that performance was, as a result
of those measures, not made in accordance with the terms of the relevant
contract or transaction.
                                Article 4
In any proceedings for the enforcement of a claim, the onus of proving
that satisfying the claim is not prohibited by Article 2 shall be on the
person seeking the enforcement of that claim.
                                Article 5
Each Member State shall determine the sanctions to be imposed where the
provisions of this Regulation are infringed.
                                 'AS
 ---pagebreak---                                 Article 6
This Regulation shall enter into force on the day of its publication in
the Official Journal of the European Communities.
It shall be applicable as of 1 December 1993, 00.01 hours Eastern
Standard Time in New York.
This Regulation shall be binding in its entirety and directly applicable
in all Member States.
Done at Brussels
For the CounciI
The President
                                   4C
 ---pagebreak---                                                                     ISSN 0254-1475
                                                              COM(93) 592 final
                                                      DOCUMENTS
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                                                             ISBN 92-77-61656-3
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