Council Regulation (EC) No 1184/2005 of 18 July 2005 imposing certain specific restrictive measures directed against certain persons impeding the peace process and breaking international law in the conflict in the Darfur region in Sudan
Council Regulation (EC) No 1184/2005 of 18 July 2005 imposing certain specific restrictive measures directed against certain persons impeding the peace process and breaking international law in the conflict in the Darfur region in Sudan
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 60, 301 and 308 thereof,
Having regard to Common Position 2005/411/CFSP of 30 May 2005 concerning restrictive measures against Sudan(1),
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament(2),
Whereas:
In its Resolution 1591 (2005) of 29 March 2005, the UN Security Council, acting under Chapter VII of the Charter of the United Nations, and deploring strongly that the Government of Sudan and rebel forces and all other armed groups in Darfur have failed to comply with their commitments and the demands of the Security Council, decided to impose certain additional restrictive measures in respect of Sudan.
Common Position 2005/411/CFSP provides, inter alia, for implementation of the freezing of funds and economic resources of those persons designated by the competent United Nations Sanctions Committee, who impede the peace process, constitute a threat to stability in Darfur and the region, commit violations of international humanitarian or human rights law or other atrocities, violate the arms embargo or are responsible for certain offensive military flights in and over the Darfur region. These measures fall within the scope of the Treaty and, therefore, in order to avoid any distortion of competition, Community measures are necessary to implement them as far as the Community is concerned.
For the purpose of this Regulation, the territory of the Community should be deemed to encompass the territories of the Member States to which the Treaty is applicable, under the conditions laid down in that Treaty.
In order to ensure that the measures provided for in this Regulation are effective, this Regulation should enter into force on the day of its publication.
The Treaty, in Articles 60 and 301, empowers the Council to take, under certain conditions, measures aimed at the interruption or reduction of payments or movement of capital and of economic relations with regard to third countries. The measures laid down in this Regulation, targeted also at individual persons not directly linked to the government of a third country, are necessary to attain this objective of the Community and Article 308 of the Treaty empowers the Council to take such measures if no other specific powers are provided for in the Treaty,
HAS ADOPTED THIS REGULATION:
Article 1
For the purposes of this Regulation, the following definitions shall apply:
‘Sanctions Committee’ means the Committee of the Security Council of the United Nations which was established pursuant to paragraph 3 of UN Security Council Resolution 1591 (2005);
‘funds’ means financial assets and benefits of every kind, including but not limited to:
cash, cheques, claims on money, drafts, money orders and other payment instruments;
deposits with financial institutions or other entities, balances on accounts, debts and debt obligations;
publicly and privately traded securities and debt instruments, including stocks and shares, certificates representing securities, bonds, notes, warrants, debentures and derivatives contracts;
interest, dividends or other income on or value accruing from or generated by assets;
credit, right of set-off, guarantees, performance bonds or other financial commitments;
letters of credit, bills of lading, bills of sale;
documents evidencing an interest in funds or financial resources;
any other instrument of export-financing;
‘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;
‘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;
‘freezing of economic resources’ means preventing their use to obtain funds, goods or services in any way, including, but not limited to, the selling, hiring or mortgaging of them.
Article 2
All funds and economic resources belonging to, owned or controlled, directly or indirectly, by the natural or legal persons, entities or bodies listed in Annex I shall be frozen.
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.
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.
Article 3
By way of derogation from Article 2 the competent authorities of 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 frozen funds or economic resources, under such conditions as they deem appropriate, after having determined that the funds or economic resources concerned are:
necessary for basic expenses, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges;
intended exclusively for payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services;
intended exclusively for payment of fees or service charges for routine holding or maintenance of frozen funds or economic resources;
provided that the Member State concerned has notified this determination to the Sanctions Committee and the Sanctions Committee has not objected within two working days of such notification.
By way of derogation from Article 2 the competent authorities of 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 frozen funds or economic resources, after having determined that the funds or economic resources are necessary for extraordinary expenses, provided that this determination has been notified by the Member State to the Sanctions Committee and that the determination has been approved by that Committee.
Article 4
By way of derogation from Article 2, the competent authorities of the Member States as listed in Annex II may authorise the release of certain frozen funds or economic resources, if the following conditions are met:
the funds or economic resources are subject of a judicial, administrative or arbitral lien established prior to 29 March 2005 or of a judicial, administrative or arbitral judgment rendered prior to that date;
the funds or economic resources will be used exclusively to satisfy claims secured by such a lien or recognised as valid in such a judgment, within the limits set by applicable laws and regulations governing the rights of persons having such claims;
the lien or judgment is not for the benefit of a person, entity or body listed in Annex I;
recognising the lien or judgment is not contrary to public policy in the Member State concerned;
the lien or judgment has been notified by the Member State to the Sanctions Committee.