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Council Regulation (EU) No 377/2012 of 3 May 2012 concerning restrictive measures directed against certain persons, entities and bodies threatening the peace, security or stability of the Republic of Guinea-Bissau

Council Regulation (EU) No 377/2012 of 3 May 2012 concerning restrictive measures directed against certain persons, entities and bodies threatening the peace, security or stability of the Republic of Guinea-Bissau

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 215(2) thereof,

Having regard to Council Decision 2012/237/CFSP of 3 May 2012 concerning restrictive measures directed against certain persons, entities and bodies threatening the peace, security or stability of the Republic of Guinea-Bissau(1),

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

Whereas:

  1. Decision 2012/237/CFSP provides for the adoption of restrictive measures against certain persons, entities and bodies who seek to prevent or block a peaceful political process, or who take action that undermines stability in the Republic of Guinea-Bissau. This concerns in particular those who played a leading role in the mutiny of 1 April 2010 and the coup d’état of 12 April 2012 and whose actions continue to be aimed at undermining the rule of law and the primacy of civilian power. These measures include the freezing of funds and economic resources of the natural or legal persons, entities and bodies listed in the Annex to that Decision.

  2. These measures fall within the scope of the Treaty on the Functioning of the European Union and, therefore, in particular with a view to ensuring their uniform application by economic operators in all Member States, regulatory action at the level of the Union is necessary in order to implement them.

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

  4. The power to amend the list in Annex I to this Regulation should be exercised by the Council, in view of the specific threat to international peace and security posed by the situation in Guinea-Bissau and in order to ensure consistency with the procedure for amending and reviewing the Annex to Decision 2012/237/CFSP.

  5. The procedure for amending the list in Annex I to this Regulation should include providing designated natural or legal persons, entities or bodies with the grounds for the 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 the light of those observations and inform the person, entity or body concerned accordingly.

  6. For the implementation of this Regulation, and in order 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 are to be frozen in accordance with this Regulation should be made public. Any processing of personal data 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(2) 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(3).

  7. In order to ensure that the measures provided for in this Regulation are effective, this Regulation should enter into force immediately,

HAS ADOPTED THIS REGULATION:

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 can be used to obtain funds, goods or services;

  4. ‘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;

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

Article 2

1.

All funds and economic resources belonging to, owned, held or controlled by natural or legal persons, entities and bodies who, in accordance with Article 2(1) of Decision 2012/237/CFSP, have been identified by the Council as either (i) engaging in or providing support for acts that threaten the peace, security or stability of the Republic of Guinea-Bissau or (ii) being associated with such persons, entities or bodies, as 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 the natural or legal persons, entities or bodies listed in Annex I.

3.

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.

Article 3

1.

Annex I shall include the grounds for listing of listed persons, entities and bodies.

2.

Annex I shall also include, where available, information necessary to identify the natural or legal persons, entities and bodies concerned. With regard to natural persons, such information may include names, including aliases, date and place of birth, nationality, passport and ID card numbers, gender, address, if known, and function or profession. With regard to legal persons, entities and bodies, such information may include names, place and date of registration, registration number and place of business.

Article 4

1.

By way of derogation from Article 2, the competent authorities of the Member States, as identified on the websites 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, under such conditions as they deem appropriate, after having 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;

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

  4. necessary for extraordinary expenses, provided in this case that the Member State has notified the grounds on which it considers that a specific authorisation should be granted to all other Member States and to the Commission at least two weeks prior to authorisation.

2.

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

Article 5

Article 6

Article 7

Article 8

Article 9

Article 10

Article 11

Article 12

Article 13

Article 14

Article 15

ANNEX I

ANNEX II