CELEX: 51993PC0283
Language: en
Date: 1993-06-22
Title: Proposal for a COUNCIL REGULATION (EEC) prohibiting the satisfying of claims with regard to contracts and transactions the performance of which as affected by the United Nations Security Council Resolution 757 (1992) and related resolutions

COMMISSION OF THE EUROPEAN COMMUNITIES
                                             C0MC93) 283 final
                                             Brussels, 22 June 1993
                              Proposal for a
                              IL REGULATION (EEC)
      prohibiting the satisfying of claims with regard to contracts and
       transactions the performance of which was affected by the United
  Nations Security Council Resolution 757(1992) and related resolutions
                      (presented by the Commission)
 ---pagebreak---                          EXPLANATORY MEMORANDUM
1. The Security Council of the United Nations adopted Resolution
   757(1992), imposing an embargo on the Federal Republic of Yugoslavia
   (Serbia and Montenegro).
   Paragraph 9 of this Resolution states "that all States, and the
   authorities in the Federal Republic of Yugoslavia (Serbia and
   Montenegro), shall take the necessary measures to ensure that no
   claim shall lie at the instance of the authorities in the Federal
   Republic of Yugoslavia (Serbia and Montenegro), or of any person or
   body in the Federal Republic of Yugoslavia (Serbia and Montenegro),
   or of any person claiming through or for the benefit of any such
   person or body, in connection with any contract or other transaction
   where its performance was affected by reason of the measures imposed
   by this resolution and related resolutions".
2. The formulation of paragraph 9 of UNSC Resolution 757(1992) 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 9 of UNSC Resolution 757(1992), and given the
   abovementioned similarity between paragraphs 29 and 9 of the
   respective UNSC Resolutions, the present proposal follows, mutatis
   mutandis, the formulation of Council Regulation (EEC) 3541/92.
 ---pagebreak---                                        J.
                                 PROPOSAL for a
                   COUNCIL REGULATION (EEC) N°
     prohibiting the satisfying of claims with regard to contracts and
      transactions the performance of which was affected by the United
Nations Security Council Resolution 757(1992) and related resolutions
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Whereas, under Regulation (EEC) N° 1432/92 ( D , No 2656/92< 2 ) and No.
990/93 ( 3 ), the Community has taken measures to prevent trade between the
Community and the Federal Republic of Yugoslavia (Serbia and Montenegro);
Whereas, as a consequence of the embargo against the Federal Republic of
Yugoslavia (Serbia and Montenegro), economic operators in the Community
and third countries are exposed to the risk of claims by the Federal
Republic of Yugoslavia (Serbia and Montenegro);
Whereas the United Nations Security Council has adopted Resolution
757(1992) of 30 May 1992 which, in its paragraph 9, deals with claims by
the Federal Republic of Yugoslavia (Serbia and Montenegro) in relation to
contracts and transactions the performance of which was affected by
                                                                    *
measures imposed by the Security Council pursuant to Resolution 757(1992)
and related resolutions;
 (1) OJ No L 151 of 3.6.1992, p. 1, repealed by Regulation (EEC) No.990/93
     of 28.04.1993
 (2) OJ L 266 of 12.9.1992, p. 27, repealed by Regulation (EEC) No. r390/S'3
     du 28.04 .1993
 (3) OJ L No. 102     of 28.04.93, p. 14
 ---pagebreak--- Whereas it is necessary to protect operators permanently against such
claims and to prevent the Federal Republic of Yugoslavia (Serbia and
Montenegro) from obtaining compensation for the negative effects of the
embargo;
Whereas the Community and its Member States meeting in Political
Cooperation have agreed that the Federal Republic of Yugoslavia (Serbia
and Montenegro) must comply in full with the provisions of paragraph 9 of
United Nations Security Council Resolution 757(1992) and consider that,
in deciding whether to reduce or lift measures taken against the Federal
Republic of Yugoslavia (Serbia and Montenegro), pursuant to paragraph 31
of Security Council Resolution 820(1993), particular account must be
taken of any failure by the Federal Republic of Yugoslavia (Serbia and
Montenegro) to comply with paragraph 9 of the Resolution 757(1992);
Whereas the Community and its Member States meeting in Political
Cooperation have agreed to resort to a Community instrument in order to
ensure uniform implementation, throughout the Community, of paragraph 9
of United Nations Security Council Resolution 757(1992);
Whereas such uniform implementation is essential for achieving the aims
of the Treaty establishing the European Economic Community and in
particular for avoiding distortion of competition;
Whereas the Treaty does not provide, for the adoption of this Regulation,
powers other than those of Article 235,
Having regard to the Treaty establishing the European Economic Community,
and in particular Article 235 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament^4^
HAS ADOPTED THIS REGULATION
 !4) Opinion delivered on
 ---pagebreak---                                    - 4 -
                                 Article 1
For the purposes of this Regulation :
1.  'contract or transaction1 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
    transaction;
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 757(1992) 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
    embargo of the Federal Republic of Yugoslavia (Serbia and
    Montenegro);
 ---pagebreak---                                    - 5 -
4.   'person or body in the Federal Republic of Yugoslavia (Serbia and
     Montenegro) means :
(a) the state of the Federal Republic of Yugoslavia (Serbia and
     Montenegro) or any public authority thereof ;
(b) any person in, or resident in the Federal Republic of Yugoslavia
     (Serbia and Montenegro);
(c) any body having its registered office or headquarters in the Federal
     Republic of Yugoslavia (Serbia and Montenegro)
(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 757(1992) 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 the Federal Republic of Yugoslavia (Serbia and
     Montenegro) or acting through a person or body in the Federal
     Republic of Yugoslavia (Serbia and Montenegro);
 (b) any person or body acting, directly or indirectly, on behalf of or
     for the benefit of one or more persons or bodies in the Federal
     Republic of Yugoslavia (Serbia and Montenegro);
(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
     the Federal Republic of Yugoslavia (Serbia and Montenegro);
 ---pagebreak--- (d) any other person or body referred to in paragraph 9 of United Nations
     Security Council Resolution 757/(1992);
 (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 757(1992) 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 757(1992) and related resolutions, Article 2
shall not apply :
 (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 757(1992) 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;
 ---pagebreak---                                  7- 7 -
(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 757(1992) 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 757(1992) 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.
 ---pagebreak---                                   - 8-
                                Article 6
This Regulation shall enter into force on the day of its publication in
the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable
in all Member States.
Done at Brussels
For the Council
The President
 ---pagebreak---                                                 -  H-
                                                                      ISSN 0254-1475
                                                               COM(93) 283 final
                                                       DOCUMENTS
EN                                                                              11
                                  Catalogue number : CB-CO-93-319-EN-C
                                                              ISBN 92-77-56905-0
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