Council Decision 2010/788/CFSP of 20 December 2010 concerning restrictive measures against the Democratic Republic of the Congo and repealing Common Position 2008/369/CFSP

The direct or indirect supply, sale or transfer of arms and any related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment and spare parts for the aforementioned to all non-governmental entities and individuals operating in the territory of the Democratic Republic of the Congo (DRC) by nationals of Member States or from the territories of Member States, or using their flag vessels or aircraft, shall be prohibited whether originating or not in their territories.

It shall also be prohibited to:

1. grant, sell, supply or transfer technical assistance, brokering services and other services related to military activities and to the provision, manufacture, maintenance and use of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, directly or indirectly to all non-governmental entities and individuals operating in the territory of the DRC;

2. provide financing or financial assistance related to military activities, including in particular grants, loans and export credit insurance, for any sale, supply, transfer or export of arms and related materiel, or for any grant, sale, supply, or transfer of related technical assistance, brokering services and other services, directly or indirectly to all non-governmental entities and individuals operating in the territory of the DRC.

Article 1 shall not apply to:

1. the supply, sale or transfer of arms and any related materiel or the provision of technical assistance, financing, brokering services and other services related to arms and related materiel intended solely for support of, or use by, the United Nations Organisation Stabilisation Mission in the Democratic Republic of the Congo (MONUSCO);

2. the supply, sale or transfer of protective clothing, including flak jackets and military helmets, temporarily exported to the DRC by United Nations personnel, representatives of the media and humanitarian and development workers and associated personnel, for their personal use only;

3. the supply, sale or transfer of non-lethal military equipment intended solely for humanitarian or protective use, or the provision of technical assistance and training, related to such non-lethal equipment, as notified in advance to the Sanctions Committee established pursuant to UNSCR 1533 (2004) (Sanctions Committee);

4. the supply, sale or transfer of arms and any related materiel, or the provision of related financial or technical assistance or training, intended solely for the support of or use by the African Union-Regional Task Force;

5. other sales and/or supply of arms and related materiel, or provision of assistance or personnel, as approved in advance by the Sanctions Committee.

The supply, sale or transfer of arms and any related materiel or the provision of services or technical assistance and training referred to in paragraph 1 shall be subject to prior authorisation by the competent authorities of the Member States.

Member States shall give the Sanctions Committee established pursuant to UNSCR 1533 (2004) (Sanctions Committee) advance notification of any shipment of arms and related materiel for the DRC, or any provision of technical assistance, financing, brokering services and other services related to military activities in the DRC, other than those referred to in paragraphs 1(a) and (b). Such notification shall contain all relevant information, including, where appropriate, the end-user, the proposed date of delivery and the itinerary of shipments.

Member States shall consider deliveries under paragraph 1 on a case-by-case basis, taking full account of the criteria set out in Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment⁽¹⁾. Member States shall require adequate safeguards against misuse of authorisations granted pursuant to paragraph 2 and, where appropriate, make provisions for repatriation of the arms delivered and related materiel.

Restrictive measures as provided for in Articles 4(1) and 5(1) and (2) shall be imposed against persons and entities designated by the Sanctions Committee for engaging in or providing support for acts that undermine the peace, stability or security of the DRC. Such acts include:

1. acting in violation of the arms embargo and related measures as referred to in Article 1;

2. being political and military leaders of foreign armed groups operating in the DRC who impede the disarmament and the voluntary repatriation or resettlement of combatants belonging to those groups;

3. being political and military leaders of Congolese militias, including those receiving support from outside the DRC, who impede the participation of their combatants in disarmament, demobilisation and reintegration processes;

4. recruiting or using children in armed conflict in the DRC in violation of applicable international law;

5. being involved in planning, directing, or committing acts in the DRC that constitute human rights violations or abuses or violations of international humanitarian law, as applicable, including those acts involving the targeting of civilians, including killing and maiming, rape and other sexual violence, abduction, forced displacement, and attacks on schools and hospitals;

6. obstructing the access to or the distribution of humanitarian assistance in the DRC;

7. supporting persons or entities, including armed groups or criminal networks, involved in destabilising activities in the DRC through the illicit exploitation of or trade in natural resources, including gold, or wildlife or wildlife products;

8. acting on behalf of or at the direction of a designated person or entity, or acting on behalf of or at the direction of an entity owned or controlled by a designated person or entity;

9. planning, directing, sponsoring or participating in attacks against MONUSCO peacekeepers or United Nations personnel;

10. providing financial, material, or technological support for, or goods or services to a designated person or entity.

The relevant persons and entities covered by this paragraph are listed in Annex I.

Restrictive measures as provided for in Articles 4(1) and 5(1) and (2) shall be imposed against persons and entities:

1. obstructing a consensual and peaceful solution towards elections in DRC, including by acts of violence, repression or inciting violence, or by undermining the rule of law;

2. involved in planning, directing or committing acts that constitute serious human rights violations or abuses in DRC;

3. associated with those referred to in points (a) and (b);

as listed in Annex II.

Member States shall take the necessary measures to prevent the entry into or transit through their territories of the persons referred to in Article 3.

Paragraph 1 shall not oblige a Member State to refuse its own nationals entry into its territory.

With regard to persons referred to in Article 3(1), paragraph 1 of this Article shall not apply:

1. where the Sanctions Committee determines in advance and on a case-by-case basis that such entry or transit is justified on the grounds of humanitarian need, including religious obligation;

2. where the Sanctions Committee concludes that an exemption would further the objectives of relevant resolutions of the United Nations Security Council, that is to say peace and national reconciliation in the DRC and stability in the region;

3. where the Sanctions Committee authorises in advance and on a case-by-case basis, the transit of persons returning to the territory of the State of their nationality, or participating in efforts to bring to justice perpetrators of grave violations of human rights or international humanitarian law; or

4. where such entry or transit is necessary for the fulfilment of judicial process.

In cases where, pursuant to this paragraph, a Member State authorises the entry into or transit through its territory of persons designated by the Sanctions Committee, the authorisation shall be limited to the purpose for which it is given and to the persons concerned thereby.

With regard to persons referred to in Article 3(2), paragraph 1 of this Article shall be without prejudice to the cases where a Member State is bound by an obligation of international law, namely:

1. as a host country of an international intergovernmental organisation;

2. as a host country to an international conference convened by, or under the auspices of, the United Nations;

3. under a multilateral agreement conferring privileges and immunities; or

4. pursuant to the 1929 Treaty of Conciliation (‘Lateran Pact’) concluded by the Holy See (Vatican City State) and Italy.

Paragraph 4 shall be considered as applying also where a Member State is host country of the Organisation for Security and Cooperation in Europe (OSCE).

Where a Member State grants an exemption pursuant to paragraph 4 or 5, it shall duly inform the Council thereof.

With regard to persons referred to in Article 3(2), Member States may grant exemptions from the measures imposed under paragraph 1 of this Article where travel is justified on the grounds of urgent humanitarian need, or on grounds of attending intergovernmental meetings and those promoted or hosted by the European Union, or hosted by a Member State holding the Chairmanship in office of the OSCE, where a political dialogue is conducted that directly promotes the policy objectives of restrictive measures, including democracy, human rights and the rule of law in DRC.

A Member State wishing to grant exemptions referred to in paragraph 7 shall notify the Council in writing. The exemption shall be deemed to be granted unless one or more of the Council members raises an objection in writing within two working days of receiving notification of the proposed exemption. Where one or more of the Council members raise an objection, the Council, acting by a qualified majority, may decide to grant the proposed exemption.

Where, pursuant to paragraphs 4, 5, 6, 7 or 8 a Member State authorises the entry into, or transit through its territory of persons listed in Annex II, the authorisation shall be strictly limited to the purpose for which it is given and to the persons directly concerned thereby.

All funds, other financial assets and economic resources owned or controlled directly or indirectly by the persons or entities referred to in Article 3 or held by entities owned or controlled directly or indirectly by them or by any persons or entities acting on their behalf or at their direction, as identified in Annex I and II, shall be frozen.

No funds, other financial assets or economic resources shall be made available, directly or indirectly, to or for the benefit of the persons or entities referred to in paragraph 1.

With regard to persons and entities referred to in Article 3(1), Member States may allow for exemptions from the measures referred to in paragraphs 1 and 2 in respect of funds, other financial assets and economic resources which are:

1. necessary for basic expenses, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges;

2. intended exclusively for the payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services;

3. intended exclusively for the payment of fees or service charges, in accordance with national laws, for routine holding or maintenance of frozen funds, or other financial assets and economic resources;

4. necessary for extraordinary expenses, after notification by the Member State concerned to, and approval by, the Sanctions Committee; or

5. the subject of a judicial, administrative or arbitral lien or judgment, in which case the funds, other financial assets and economic resources may be used to satisfy that lien or judgment provided that the lien or judgment was entered before designation by the Sanctions Committee of the person or entity concerned, and is not for the benefit of a person or entity referred to in Article 3, after notification by the Member State concerned to the Sanctions Committee.

The exemptions referred to in points (a), (b) and (c) of paragraph 3 may be made after notification to the Sanctions Committee by the Member State concerned of its intention to authorise, where appropriate, access to such funds, other financial assets and economic resources, and in the absence of a negative decision by the Sanctions Committee within four working days of such notification.

With regard to persons and entities referred to in Article 3(2), the competent authority of a Member State 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 it deems appropriate, after having determined that the funds or economic resources concerned are:

1. necessary to satisfy the basic needs of the persons and entities and dependent family members of such natural persons, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges;

2. intended exclusively for the payment of reasonable professional fees and the reimbursement of incurred expenses associated with the provision of legal services;

3. intended exclusively for the payment of fees or service charges for the routine holding or maintenance of frozen funds or economic resources; or

4. necessary for extraordinary expenses, provided that the competent authority has notified the competent authorities of the 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.

The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under this paragraph.

By way of derogation from paragraphs 1 and 2, the competent authorities of a Member State may authorise the release of certain frozen funds or economic resources for persons and entities listed in Annex II, provided that the following conditions are met:

1. the funds or economic resources are the subject of an arbitral decision rendered prior to the date on which the person or entity was listed in the Annex II, or of a judicial or administrative decision rendered in the Union, or a judicial decision enforceable in the Member State concerned, prior to or after that date;

2. the funds or economic resources will be used exclusively to satisfy claims secured by such a decision or recognised as valid in such a decision, within the limits set by applicable laws and regulations governing the rights of persons having such claims;

3. the decision is not for the benefit of a person or entity listed in Annex I or II; and

4. recognition of the decision is not contrary to public policy in the Member State concerned.

The Member State concerned shall inform the other Member States and the Commission of any authorisations granted under this paragraph.

With regard to persons and entities listed in Annex II, exemptions may also be made for funds and economic resources which are necessary for humanitarian purposes, such as delivering or facilitating the delivery of assistance, including medical supplies and food, or the transfer of humanitarian workers and related assistance or for evacuations from DRC.

Paragraphs 1 and 2 shall not prevent a person or entity listed in Annex II from making a payment due under a contract entered into prior to the date on which the person or entity was listed therein, provided that the Member State concerned has determined that the payment is not, directly or indirectly, received by a person or entity listed in Annex I or II.

Paragraph 2 shall not apply to the addition to frozen accounts of:

1. interest or other earnings on those accounts;

2. payments due under contracts, agreements or obligations that were concluded or arose before the date on which those accounts became subject to restrictive measures, or

3. payments due to persons and entities referred to in Article 3(2) under judicial, administrative or arbitral decisions rendered in the Union or enforceable in the Member State concerned,

provided that any such interest, other earnings and payments remain subject to paragraph 1.