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Council Regulation (EU) No 356/2010 of 26 April 2010 imposing certain specific restrictive measures directed against certain natural or legal persons, entities or bodies, in view of the situation in Somalia

Council Regulation (EU) No 356/2010 of 26 April 2010 imposing certain specific restrictive measures directed against certain natural or legal persons, entities or bodies, in view of the situation in Somalia

Article 1

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

  1. ‘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;

  2. ‘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;

  3. ‘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;

  4. ‘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;

  5. ‘Sanctions Committee’ means the Committee of the Security Council established pursuant to UNSCR 751 (1992) concerning Somalia;

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

  7. ‘investment services’ means:

    1. reception and transmission of orders in relation to one or more financial instruments;

    2. execution of orders on behalf of clients;

    3. dealing on own account;

    4. portfolio management;

    5. investment advice;

    6. underwriting of financial instruments and/or placing of financial instruments on a firm commitment basis;

    7. placing of financial instruments without a firm commitment basis; or

    8. operating of multilateral trading facilities,

    provided that the activity relates to any of the financial instruments listed in Section C of Annex I to Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments(1);

  8. ‘territory of the Union’ means the territories to which the Treaties are applicable, under the conditions laid down in the Treaties.

  9. ‘statement of reasons’ means the publicly releasable portion of the statement of case and/or, where applicable, the narrative summary of reasons for listing as provided by the Sanctions Committee.

Article 2

1.

All funds and economic resources belonging to, owned, held or controlled by natural or legal persons, entities, or 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 natural or legal persons, entities or bodies listed in Annex I.

3.

Annex I shall consist of natural or legal persons, entities or bodies designated by the Security Council or the Sanctions Committee as:

  1. engaging in, or providing support for, acts that threaten the peace, security or stability of Somalia, where such acts include, but are not limited to:

    1. planning, directing or committing acts involving sexual and gender-based violence;

    2. acts that threaten the peace and reconciliation process in Somalia;

    3. acts that threaten the Federal Government of Somalia or the African Union Transition Mission in Somalia (ATMIS) by force;

  2. having acted in violation of the arms embargo or the prohibition against providing related assistance or the arms resale and transfer restrictions as stipulated in paragraph 34 of UNSCR 2093 (2013);

  3. obstructing the delivery of humanitarian assistance to Somalia, or access to, or distribution of, humanitarian assistance in Somalia;

  4. being political or military leaders recruiting or using children in armed conflicts in Somalia in violation of applicable international law;

  5. being responsible for violations of applicable international law in Somalia involving the targeting of civilians, including children and women, in situations of armed conflict, including killing and maiming, sexual and gender-based violence, attacks on schools and hospitals and abduction and forced displacement;

  6. being associated with Al-Shabaab, acts and activities indicating that an individual or entity is associated with Al-Shabaab including:

    1. participating in the financing, planning, facilitating, preparing, or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf of, or in support of Al-Shabaab;

    2. supplying, selling or transferring arms and related materiel to Al-Shabaab; and

    3. recruiting for, or otherwise supporting acts or activities of Al-Shabaab or any cell, affiliate, splinter group or derivative thereof.

4.

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.

5.

The prohibition set out in paragraph 2 shall not give rise to liability of any kind on the part of the natural or legal persons, entities or bodies which made funds or economic resources available, where they did not know, and had no reasonable cause to suspect, that their actions would infringe this prohibition.

Article 3

1.

Article 2(2) shall not apply to the addition to frozen accounts of:

  1. interest or other earnings on those accounts; or

  2. 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 was designated by the Sanctions Committee or the Security Council,

provided that any such interest, other earnings and payments continue to be subject to 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 competent authorities in the Member States, as indicated in the websites listed in Annex II, about such transactions without delay.

Article 4

1.

Article 2(1) and (2) shall not apply to the making available of funds or economic resources necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs where such assistance and other activities are carried out by:

  1. the United Nations, including its programmes, funds and other entities and bodies, as well as its specialised agencies and related organisations;

  2. international organisations;

  3. humanitarian organisations having observer status with the United Nations General Assembly and members of those humanitarian organisations;

  4. bilaterally or multilaterally funded non-governmental organisations participating in the United Nations Humanitarian Response Plans, Refugee Response Plans, other United Nations appeals or humanitarian clusters coordinated by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA);

  5. the employees, grantees, subsidiaries, or implementing partners of the entities mentioned in points (a) to (d) while and to the extent that they are acting in those capacities; or

  6. appropriate other actors as determined by the Sanctions Committee.

2.

The exemption set out in paragraph 1 shall not give rise to liability of any kind on the part of the natural or legal persons, entities or bodies which made funds or economic resources available, where they did not know, and had no reasonable cause to suspect, that their actions would not be covered by this exemption.

Article 5

1.

By way of derogation from Article 2, the competent authorities in the Member States, as indicated in the websites listed in Annex II, may authorise, under such conditions as they deem appropriate, the release of certain frozen funds or economic resources, or the making available of certain funds or economic resources, if the following conditions are met:

  1. the competent authority concerned has determined that the funds or economic resources are:

    1. necessary to satisfy the basic needs of the 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;

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

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

  2. the Member State concerned has notified the Sanctions Committee of that determination and its intention to grant an authorisation, and the Sanctions Committee has not objected to that course of action within three working days of the notification.

2.

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, after having determined that these are necessary to cover extraordinary expenses, provided that the Sanctions Committee has been notified of this determination by the Member State concerned and that the determination has been approved by that Committee.

3.

The relevant Member State shall inform the other Member States and the Commission of any authorisation granted under paragraphs 1 and 2.

Article 6

Article 7

Article 8

Article 9

Article 10

Article 11

Article 12

Article 13

Article 14

Article 15

Article 16

Article 17

Article 18

ANNEX I

ANNEX II