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Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007

Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 215 thereof,

Having regard to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP(1),

Having regard to the joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and the European Commission,

Whereas:

  1. On 26 July 2010, the Council approved Decision 2010/413/CFSP confirming the restrictive measures taken since 2007 and providing for additional restrictive measures against the Islamic Republic of Iran (‘Iran’) in order to comply with UN Security Council Resolution 1929 (2010), as well as for accompanying measures as requested by the European Council in its Declaration of 17 June 2010.

  2. Those restrictive measures comprise, in particular, additional restrictions on trade in dual-use goods and technology, as well as equipment which might be used for internal repression, restrictions on trade in key equipment and technology for, and restrictions on investment in the Iranian oil and gas industry, restrictions on Iranian investment in the uranium mining and nuclear industry, restrictions on transfers of funds to and from Iran, restrictions concerning the Iranian banking sector, restrictions on Iran's access to the insurance and bonds markets of the Union and restrictions on providing certain services to Iranian ships and cargo aircraft.

  3. Decision 2010/413/CFSP also provided for additional categories of persons to be made subject to the freezing of funds and economic resources and for certain other technical amendments to existing measures.

  4. Those restrictive measures fall within the scope of the Treaty on the Functioning of the European Union and, therefore, notably with a view to ensuring their uniform application by economic operators in all Member States, legislation at the level of the Union is necessary in order to implement them as far as the Union is concerned.

  5. Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran(2) enacted the restrictive measures taken by the Union further to Common Position 2007/140/CFSP(3). For the sake of clarity, Regulation (EC) No 423/2007 should be repealed and replaced by this Regulation.

  6. The revised restrictive measures concerning dual-use goods should cover all goods and technology set out in Annex I to Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items(4), with the exception of certain items in Category 5 thereof. Those Category 5 items which relate to nuclear and missile technology and are currently subject to a prohibition on their transfer to and from Iran should, nevertheless, remain subject to such prohibition. Moreover, a prohibition should also be imposed on the transfer to and from Iran of certain goods and technology which were previously subject to a prior authorisation requirement under Article 3 of Regulation (EC) No 423/2007.

  7. In order to ensure the effective implementation of the prohibition on the sale, supply, transfer or export to Iran of certain key equipment or technology which could be used in the key sectors of the oil and natural gas industries, a list of such key equipment and technology should be provided.

  8. In addition, to be effective, restrictions on investment in the Iranian oil and gas sector should cover certain key activities, such as bulk gas transmission services for the purpose of transit or delivery to directly interconnected grids, and, for the same reason, should apply to joint ventures as well as other forms of associations and cooperation with Iran in the sector of the transmission of natural gas.

  9. The restrictive measures should not affect the import or export of oil or gas to and from Iran, including the fulfilment of payment obligations in connection with such import or export.

  10. Effective restrictions on Iranian investment in the Union require that measures be taken to prohibit natural or legal persons, entities and bodies subject to the jurisdiction of the Member States from enabling or authorising such investment.

  11. It is prohibited, pursuant to the obligation to freeze the funds and economic resources of Islamic Republic of Iran Shipping Line (IRISL) and of designated entities owned or controlled by IRISL to load and unload cargoes on and from vessels owned or chartered by IRISL or by such entities in ports of Member States. However, the obligation to freeze the funds and economic resources of IRISL and of designated entities owned or controlled by IRISL does not require the impounding or detention of vessels owned by such entities or the cargoes carried by them insofar as such cargoes belong to third parties, nor does it require the detention of the crew contracted by them.

  12. It should be clarified that submitting and forwarding the necessary documents to a bank for the purpose of their final transfer to a person, entity or body that is not listed, to trigger payments allowed under Article 18 of this Regulation, does not constitute making funds available within the meaning of Article 16(3) of this Regulation.

  13. This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union and notably the right to an effective remedy and to a fair trial, the right to property and the right to protection of personal data. This Regulation should be applied in accordance with those rights and principles.

  14. This Regulation also fully respects the obligations of Member States under the Charter of the United Nations and the legally binding nature of the United Nations Security Council Resolutions.

  15. The power to amend the lists in Annexes VII and VIII to this Regulation should be exercised by the Council, in view of the specific threat to international peace and security posed by Iran as manifested by the deepening concern about its nuclear programme underlined by the European Council on 17 June 2010, and to ensure consistency with the process for amending and reviewing Annexes I and II to Decision 2010/413/CFSP.

  16. The procedure for amending the lists in Annexes VII and VIII to this Regulation should include providing designated natural or legal persons, entities or bodies with the grounds for listing, so as to give them an opportunity to submit observations. Where observations are submitted, or substantial new evidence is presented, the Council should review its decision in light of those observations and inform the person, entity or body concerned accordingly.

  17. For the implementation of this Regulation, and to create maximum legal certainty within the Union, the names and other relevant data concerning natural and legal persons, entities and bodies whose funds and economic resources must be frozen in accordance with the Regulation, should be made public. Any processing of personal data of natural persons under this Regulation should respect Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data(5) and Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(6).

  18. In order to ensure that the measures provided for in this Regulation are effective, it should enter into force on the day of its publication,

HAS ADOPTED THIS REGULATION:

CHAPTER I DEFINITIONS

Article 1

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

  1. ‘branch’ of a financial or credit institution means a place of business which forms a legally dependent part of a financial or credit institution and which carries out directly all or some of the transactions inherent in the business of financial or credit institutions;

  2. ‘brokering services’ means:

    1. the negotiation or arrangement of transactions for the purchase, sale or supply of goods and technology from a third country to any other third country, or

    2. the selling or buying of goods and technology that are located in third countries for their transfer to another third country.

  3. ‘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, guarantee or indemnity, particularly a financial guarantee or financial indemnity, and credit, whether legally independent or not, as well as any related provision arising under, or in connection with, the transaction;

  4. ‘credit institution’ means a credit institution as defined in Article 4(1) of Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions(7), including its branches inside or outside the Union;

  5. ‘customs territory of the Union’ means the territory as defined in Article 3 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code(8) and in Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation (EEC) No 2913/92(9);

  6. ‘economic resources’ means assets of every kind, whether tangible or intangible, movable or immovable, which are not funds, but which may be used to obtain funds, goods or services;

  7. ‘financial institution’ means

    1. an undertaking, other than a credit institution, which carries out one or more of the operations included in points 2 to 12 and points 14 and 15 of Annex I to Directive 2006/48/EC, including the activities of currency exchange offices (bureaux de change);

    2. an insurance company duly authorised in accordance with Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance(10), insofar as it carries out activities covered by that Directive;

    3. an investment firm as defined in point 1 of Article 4(1) of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments(11);

    4. a collective investment undertaking marketing its units or shares; or

    5. an insurance intermediary as defined in Article 2(5) of Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002 on insurance mediation(12), with the exception of intermediaries referred to in Article 2(7) of that Directive, when they act in respect of life insurance and other investment related services;

    including its branches inside or outside the Union.

  8. ‘freezing of economic resources’ means preventing the use of economic resources to obtain funds, goods or services in any way, including, but not limited to, by selling, hiring or mortgaging them;

  9. ‘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;

  10. ‘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; and

    7. documents showing evidence of an interest in funds or financial resources;

  11. ‘goods’ includes items, materials and equipment;

  12. ‘insurance’ means an undertaking or commitment whereby one or more natural or legal persons is or are obliged, in return for a payment, to provide one or more other persons, in the event of materialisation of a risk, with an indemnity or a benefit as determined by the undertaking or commitment;

  13. ‘Iranian person, entity or body’ means:

    1. the State of Iran or any public authority thereof;

    2. any natural person in, or resident in, Iran;

    3. any legal person, entity or body having its registered office in Iran;

    4. any legal person, entity or body, inside or outside Iran, owned or controlled directly or indirectly by one or more of the above mentioned persons or bodies;

  14. ‘reinsurance’ means the activity consisting in accepting risks ceded by an insurance undertaking or by another reinsurance undertaking or, in the case of the association of underwriters known as Lloyd’s, the activity consisting in accepting risks, ceded by any member of Lloyd’s, by an insurance or reinsurance undertaking other than the association of underwriters known as Lloyd’s;

  15. ‘Sanctions Committee’ means the Committee of the United Nations Security Council which was established pursuant to paragraph 18 of United Nations Security Council Resolution (‘UNSCR’) 1737 (2006);

  16. ‘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;

  17. ‘territory of the Union’ means the territories of the Member States to which the Treaty is applicable, under the conditions laid down in the Treaty, including their airspace;

  18. ‘transfer of funds’ means any transaction carried out on behalf of a payer through a payment service provider by electronic means, with a view to making funds available to a payee at a payment service provider, irrespective of whether the payer and the payee are the same person. The terms payer, payee and payment service provider have the same meaning as in Regulation (EC) No 1781/2006 of the European Parliament and of the Council of 15 November 2006 on information on the payer accompanying transfers of funds(13);

  19. ‘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 includes in particular:

    1. a claim for performance of any obligation arising under or in connection with a contract or transaction;

    2. a claim for extension or payment of a bond, financial guarantee or indemnity of whatever form;

    3. a claim for compensation in respect of a contract or transaction;

    4. a counterclaim;

    5. a claim for the recognition or enforcement, including by the procedure of exequatur, of a judgment, an arbitration award or an equivalent decision, wherever made or given.

CHAPTER II EXPORT AND IMPORT RESTRICTIONS

Article 2

1.

It shall be prohibited:

  1. to sell, supply, transfer or export, directly or indirectly, the goods and technology listed in Annexes I and II, whether or not originating in the Union, to any Iranian person, entity or body or for use in Iran; or

  2. to sell, supply, transfer or export, directly or indirectly, equipment which might be used for internal repression as listed in Annex III, whether or not originating in the Union, to any Iranian person, entity or body or for use in Iran;

  3. to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent the prohibitions referred to in points (a) and (b).

2.

Annex I shall include goods and technology, including software, which are dual-use items or technology as defined in Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items, except for the goods and technology defined in Category 5 of Annex I to that Regulation which are not included in the Nuclear Suppliers Group and Missile Technology Control Regime lists.

3.

Annex II shall include other goods and technology which could contribute to Iran's enrichment-related, reprocessing or heavy-water-related activities, to the development of nuclear weapon delivery systems, or to the pursuit of activities related to other topics about which the IAEA has expressed concerns or has identified as outstanding, including those determined by the UN Security Council or by the Sanctions Committee.

4.

Annexes I, II and III shall not include goods and technology included in the Common Military List of the European Union(14) (‘Common Military List’).

Article 3

Article 4

Article 5

Article 6

Article 7

Article 8

Article 9

Article 10

CHAPTER III RESTRICTIONS ON FINANCING OF CERTAIN ENTREPRISES

Article 11

Article 12

Article 13

Article 14

Article 15

CHAPTER IV FREEZING OF FUNDS AND ECONOMIC RESOURCES

Article 16

Article 17

Article 18

Article 19

Article 20

CHAPTER V RESTRICTIONS ON TRANSFERS OF FUNDS AND ON FINANCIAL SERVICES

Article 21

Article 22

Article 23

Article 24

Article 25

Article 26

CHAPTER VI RESTRICTIONS ON TRANSPORT

Article 27

Article 28

CHAPTER VII GENERAL AND FINAL PROVISIONS

Article 29

Article 30

Article 31

Article 32

Article 33

Article 34

Article 35

Article 36

Article 37

Article 38

Article 39

Article 40

Article 41

ANNEX I

ANNEX II

ANNEX III

ANNEX IV

ANNEX V

ANNEX VI

ANNEX VII

ANNEX VIII