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Council Regulation (EC) No 194/2008 of 25 February 2008 renewing and strengthening the restrictive measures in respect of Burma/Myanmar and repealing Regulation (EC) No 817/2006

Council Regulation (EC) No 194/2008 of 25 February 2008 renewing and strengthening the restrictive measures in respect of Burma/Myanmar and repealing Regulation (EC) No 817/2006

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 60 and 301 thereof,

Having regard to Common Position 2007/750/CFSP of 19 November 2007 amending Common Position 2006/318/CFSP renewing restrictive measures against Burma/Myanmar(1),

Having regard to the proposal from the Commission,

Whereas:

  1. On 28 October 1996, the Council, concerned at the absence of progress towards democratisation and at the continuing violation of human rights in Burma/Myanmar, imposed certain restrictive measures against Burma/Myanmar by Common Position 1996/635/CFSP(2). These measures were subsequently extended and amended by Common Position 2000/346/CFSP(3), repealed and replaced by Common Position 2003/297/CFSP(4), and then renewed by Common Position 2004/423/CFSP(5), reinforced by Common Position 2004/730/CFSP(6), amended by Common Position 2005/149/CFSP(7) and extended and amended by Common Position 2005/340/CFSP(8). The Council further adopted Common Position 2006/318/CFSP(9) in view of the political situation in Burma/Myanmar, as witnessed by:

    • the failure of the military authorities to enter into substantive discussions with the democratic movement concerning a process leading to national reconciliation, respect for human rights and democracy,

    • the failure to allow a genuine and open National Convention,

    • the continuing detention of Daw Aung San Suu Kyi, other members of the National League for Democracy (NLD) and other political detainees,

    • the continued harassment of the NLD and other organised political movements,

    • the continuing serious violations of human rights, including the failure to take action to eradicate the use of forced labour in accordance with the recommendations of the International Labour Organisation’s High-Level Team report of 2001 and recommendations and proposals of subsequent ILO missions; and

    • recent developments such as increasing restrictions on the operation of international organisations and non-governmental organisations.

  2. Common Position 2006/318/CFSP therefore provided for the maintenance of the restrictive measures against the military regime in Burma/Myanmar, those who benefit most from its misrule and those who actively frustrate the process of national reconciliation, respect for human rights and democracy. The restrictive measures provided for by Common Position 2006/318/CFSP included an arms embargo, a ban on technical assistance, financing and financial assistance related to military activities, a ban on the export of equipment which might be used for internal repression, the freezing of funds and economic resources of members of the Government of Burma/Myanmar and of any natural or legal persons, entities or bodies associated with them, a travel ban on such natural persons, and a prohibition on making financial loans or credits available to, and on acquiring or extending a participation in, Burmese state-owned enterprises.

  3. Some of the restrictive measures imposed against Burma/Myanmar were implemented at Community level by Council Regulation (EC) No 817/2006 of 29 May 2006 renewing the restrictive measures in respect of Burma/Myanmar and repealing Regulation (EC) No 798/2004(10).

  4. In reaction to the brutal repression perpetrated by the Burmese authorities against peaceful protestors in September 2007 and the continuing serious violations of human rights in Burma/Myanmar, the Council decided on 19 November 2007 to apply further restrictive measures against that country’s military regime, in addition to those already in place in accordance with Common Position 2006/318/CFSP.

  5. Common Position 2007/750/CFSP provides for new restrictive measures concerning certain imports from, exports to and investments in Burma/Myanmar, targeting its timber industry and certain extractive industries.

  6. It also calls for broadening the scope of the existing restrictions on investment to also apply in respect of investment in enterprises owned or controlled by persons or entities associated with the military regime, and for broadening the categories of persons targeted by the freezing of funds and economic resources to include also additional senior serving members of the Burmese military.

  7. For more than a decade, the Council and members of the international community have repeatedly condemned the Burmese/Myanmar regime’s practice of torture, summary and arbitrary executions, forced labour, abuse of women, political arrests, forced displacement of the population and restrictions on the fundamental rights of freedom of speech, movement and assembly. Taking into account the regime’s longstanding, continuing serious violations of fundamental rights, including the recent brutal repression of peaceful demonstrations, the restrictive measures in this Regulation are instrumental in promoting respect for fundamental human rights and thus serve the purpose of protecting public morals.

  8. The new restrictive measures target sectors which provide sources of revenue for the military regime of Burma/Myanmar. Therefore the new restrictive measures apply to wood and wood products, and to coal, gold, silver, certain base metals and precious and semi-precious stones. In these sectors, certain measures restrict imports, exports and investments. The list of entities to which the new restrictions on investment and financial assistance for exports should correspond to the list established in Annex I to Common Position 2007/750/CFSP which lists entities in Burma/Myanmar involved in these targeted sectors.

  9. These restrictions are designed to prevent those subject to EC jurisdiction from deriving benefits from trade which promotes or otherwise facilitates the implementation of such policies, which are in breach of international law and are incompatible with the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, which are common to the Member States.

  10. The scope of the ban on investment imposed by Regulation (EC) No 817/2006 should be aligned with Common Position 2007/750/CFSP, and the lists of persons, entities and bodies subject to the restrictive measures of that Regulation should be updated.

  11. The list of equipment which might be used for internal repression should be updated following recommendations made by experts, taking into account Council Regulation (EC) No 1236/2005 of 27 June 2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment(11).

  12. Certain of the abovementioned measures fall within the scope of the EC Treaty and, therefore, notably with a view to ensuring their uniform application by economic operators in all Member States, Community legislation is necessary to implement them as far as the Community is concerned.

  13. For the sake of clarity, a new text containing all the relevant provisions as amended should be adopted, replacing Regulation (EC) No 817/2006 which should be repealed.

  14. This Regulation should enter into force on the day of its publication so as to ensure that the measures provided for in it are effective,

HAS ADOPTED THIS REGULATION:

CHAPTER 1 Definitions

Article 1

For the purposes of this Regulation, the following definitions shall apply:

  1. ‘import’ means any entry of goods into the customs territory of the Community or other territories to which the Treaty applies, under the conditions laid down in Article 299 thereof. It includes, within the meaning of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code(12), the placing in a free zone or free warehouse, the placing under a suspensive procedure and the release for free circulation, but it excludes transit and temporary storage;

  2. ‘export’ means any departure of goods from the customs territory of the Community or other territories to which the Treaty applies, under the conditions laid down in Article 299 thereof. It includes, within the meaning of Regulation (EEC) No 2913/92, the departure of goods that requires a customs declaration and the departure of goods after their storage in a free zone of control type I or free warehouse, but it excludes transit;

  3. ‘exporter’ means any natural or legal person on whose behalf an export declaration is made, that is to say the person who, at the time when the declaration is accepted, holds the contract with the consignee in the third country and has the power for determining the sending of the item out of the customs territory of the Community or other territories to which the Treaty applies;

  4. ‘technical assistance’ means any technical support related to repairs, development, manufacture, assembly, testing, maintenance, or any other technical service, and may take such forms as instruction, advice, training, transmission of working knowledge or skills or consulting services; technical assistance shall include verbal forms of assistance;

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

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

    2. deposits with financial institutions or other entities, balances on accounts, debts and debt obligations;

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

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

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

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

    7. documents evidencing an interest in funds or financial resources;

  6. ‘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;

  7. ‘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;

  8. ‘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;

  9. ‘territory of the Community’ means the territories to which the Treaty is applicable, under the conditions laid down in the Treaty.

CHAPTER 2 Import and purchase restrictions

Article 2

1.

Annex I shall include goods belonging to the following categories:

  1. round logs, timber and timber products;

  2. coal and certain metals; and

  3. precious and semi-precious stones.

2.

It shall be prohibited:

  1. to import goods listed in Annex I, if such goods

    1. originate in Burma/Myanmar; or

    2. have been exported from Burma/Myanmar;

  2. to purchase goods located in Burma/Myanmar which are listed in Annex I;

  3. to transport goods listed in Annex I, if such goods originate in Burma/Myanmar or are being exported from Burma/Myanmar to any other country, and their final destination is in the Community; or

  4. to participate, knowingly and intentionally, in activities whose object or effect is, directly or indirectly, to circumvent the prohibitions in points (a), (b) or (c).

3.

The origin of goods shall be determined in accordance with the relevant provisions of Regulation (EEC) No 2913/92.

4.

Imports, purchases and transport of goods which are occasional and consist solely of products for the personal use of the recipients or travellers or their families shall not be considered as prohibited by paragraph 2.

Article 3

CHAPTER 3 Export restrictions

Article 4

Article 5

Article 6

Article 7

Article 8

Article 9

Article 10

CHAPTER 4 Freezing of funds and economic resources

Article 11

Article 12

Article 13

Article 14

CHAPTER 5 Restrictions on financing of certain enterprises

Article 15

CHAPTER 6 General and final provisions

Article 16

Article 17

Article 18

Article 19

Article 20

Article 21

Article 22

Article 23

ANNEX IList of goods subject to import and purchase restrictions as referred to in Article 2

ANNEX IIList of equipment which might be used for internal repression as referred to in Articles 4 and 7

ANNEX IIIEquipment and technology used by the enterprises listed in Annex V and referred to in Articles 5, 7 and 8

ANNEX IVWebsites for information on the competent authorities referred to in Articles 5, 8, 9, 13, and 20 and address for notifications to the Commission of the European Communities

ANNEX VList of enterprises in Burma/Myanmar referred to in Articles 7 and 15 and engaged in the industries mentioned in Article 7(4)

ANNEX VIList of members of the Government of Burma/Myanmar and persons, entities and bodies associated with them referred to in Article 11

ANNEX VIIList of enterprises owned or controlled by the Government of Burma/Myanmar or its members or persons associated with them, referred to in Article 15