Council Decision (CFSP) 2016/849 of 27 May 2016 concerning restrictive measures against the Democratic People's Republic of Korea and repealing Decision 2013/183/CFSP

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article 29 thereof,

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

Whereas:

On 22 December 2010, the Council adopted Decision 2010/800/CFSP⁽¹⁾ concerning restrictive measures against the Democratic People's Republic of Korea (‘the DPRK’), which, inter alia, implemented United Nations Security Council Resolutions (‘UNSCRs’) 1718 (2006) and 1874 (2009).
On 7 March 2013, the UN Security Council adopted UNSCR 2094 (2013), condemning in the strongest terms the nuclear test conducted by the DPRK on 12 February 2013 in violation of and with flagrant disregard for the relevant UNSCRs.
On 22 April 2013, the Council adopted Decision 2013/183/CFSP⁽²⁾, which replaced Decision 2010/800/CFSP and, inter alia, implemented UNSCRs 1718 (2006), 1874 (2009), 2087 (2013) and 2094 (2013).
On 2 March 2016, the UN Security Council adopted UNSCR 2270 (2016), expressing its gravest concern at the nuclear test conducted by the DPRK on 6 January 2016 in violation of the relevant UNSCRs, condemning the DPRK's launch of 7 February 2016, which used ballistic-missile technology and was in serious violation of the relevant UNSCRs, and determining that there continues to exist a clear threat to international peace and security in the region and beyond.
On 31 March 2016, the Council adopted Decision (CFSP) 2016/476⁽³⁾, which amended Decision 2013/183/CFSP and implemented UNSCR 2270 (2016).
In view of the DPRK's actions earlier this year, considered to be a grave threat to international peace and security in the region and beyond, the Council has decided to impose additional restrictive measures.
UNSCR 2270 (2016), which expresses great concern that the DPRK's arms sales have generated revenues that are diverted to the pursuit of nuclear weapons and ballistic missiles, provides that the restrictions on arms should cover all arms and related materiel, including small arms and light weapons and their related materiel. It also further extends prohibitions on the transfer and procurement of any items that could contribute to the development of the operational capabilities of the DPRK's armed forces or to exports that support or enhance the operational capabilities of armed forces of another UN Member State outside the DPRK.
UNSCR 2270 (2016) specifies that the prohibition on the procurement of technical assistance related to arms prohibits UN Member States from engaging in the hosting of trainers, advisors or other officials for the purpose of military-, paramilitary- or police-related training.
UNSCR 2270 (2016) affirms that the prohibitions on the transfer, procurement and provision of technical assistance related to certain goods also apply with respect to the shipment of items to or from the DPRK for repair, servicing, refurbishing, testing, reverse-engineering and marketing, regardless of whether ownership or control is transferred, and underscores that the visa-ban measures are also to apply to any individual traveling for those purposes.
The Council considers it appropriate to prohibit the supply, sale or transfer to DPRK of further items, materials, equipment relating to dual-use goods and technology.
UNSCR 2270 (2016) extends the list of individuals and entities subject to asset freeze and visa-ban measures and provides that the asset freeze is to apply with respect to entities of the Government of the DPRK or the Worker's Party of Korea, where the UN Member State determines that they are associated with the DPRK's nuclear or ballistic-missile programmes or other activities prohibited by the relevant UNSCRs.
UNSCR 2270 (2016), which expresses concern that the DPRK is abusing the privileges and immunities accorded to it under the Vienna Conventions on Diplomatic and Consular Relations, lays down additional measures aimed at preventing DPRK diplomats or governmental representatives or individuals from third States from acting on behalf or at the direction of designated individuals or entities or from engaging in prohibited activities.
UNSCR 2270 (2016) further clarifies the scope of the obligation for UN Member States to prevent specialised training of DPRK nationals in certain sensitive disciplines.
UNSCR 2270 (2016) also expands the scope of the measures applicable to the transportation and financial sectors.
In the context of the measures applicable to the financial sector, the Council considers that it is appropriate to prohibit transfers of funds to and from the DPRK, unless specifically authorised in advance, as well as investment by the DPRK in the territories under the jurisdiction of Member States and investment by nationals or entities of the Member States in the DPRK.
In addition to the measures provided for in the relevant UNSCR, Member States should deny permission to land in, take off from or overfly their territory to any aircraft operated by DPRK carriers or originating from the DPRK. Member States should also prohibit the entry into their ports of any vessel that is owned, operated or crewed by the DPRK.
UNSCR 2270 (2016) prohibits the procurement of certain minerals and the export of aviation fuel.
The Council considers that the prohibition on the export of luxury goods should be extended to cover the import of such goods from the DPRK.
UNSCR 2270 (2016) further extends the prohibitions on the provision of financial support for trade with the DPRK.
Furthermore, the Council considers it appropriate to extend the prohibitions on public financial support for trade with the DPRK, in particular to avoid any financial support contributing to proliferation-sensitive nuclear activities or to the development of nuclear-weapon delivery systems.
UNSCR 2270 (2016) recalls that the Financial Action Task Force (FATF) has called upon countries to apply enhanced due diligence and effective countermeasures to protect their jurisdictions from the DPRK's illicit financial activity, and calls upon UN Member States to apply FATF Recommendation 7, its Interpretive Note and related guidance to effectively implement targeted financial sanctions related to proliferation.
UNSCR 2270 (2016) also underlines that measures imposed thereby are not intended to have adverse humanitarian consequences for the civilian population of the DPRK or to affect negatively activities that are not prohibited by the relevant UNSCRs, or the work of international organisations and non-governmental organisations carrying out assistance and relief activities in the DPRK for the benefit of the civilian population.
UNSCR 2270 (2016) expresses its commitment to a peaceful, diplomatic and political solution to the situation. It reaffirms support for the Six-Party Talks and calls for their resumption.
UNSCR 2270 (2016) affirms that the DPRK's actions are to be kept under continuous review and that the UN Security Council is prepared to strengthen, modify, suspend or lift the measures as necessary in light of the DPRK's compliance and is determined to take further significant measures in the event of a further DPRK nuclear test or launch.
In February 2016, the Council carried out a review in accordance with Article 22(2) of Decision 2013/183/CFSP and Article 6(2) and (2a) of Regulation (EC) No 329/2007⁽⁴⁾ and confirmed that the persons and entities that appear in Annex II to that Decision and in Annex V to that Regulation should remain listed.
This Decision respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, notably the right to an effective remedy and to a fair trial, the right to property and the right to the protection of personal data. This Decision should be applied in accordance with those rights and principles.
This Decision also fully respects the obligations of Member States under the Charter of the United Nations and the legally binding nature of UNSCRs.
For the sake of clarity, Decision 2013/183/CFSP should be repealed and replaced by a new Decision.
Further action by the Union is needed in order to implement certain measures,

HAS ADOPTED THIS DECISION:

CHAPTER I EXPORT AND IMPORT RESTRICTIONS

Article 1

The direct or indirect supply, sale, transfer or export of the following items and technology, including software, to the DPRK by nationals of Member States or through or from the territories of Member States, or using the flag vessels or aircraft of Member States, shall be prohibited, whether or not originating in the territories of the Member States:

arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment and spare parts for the aforementioned, with the exception of non-combat vehicles which have been manufactured or fitted with materials to provide ballistic protection and are intended solely for protective use of personnel of the Union and its Member States in the DPRK;
all items, materials, equipment, goods and technology, as determined by the UN Security Council or the Committee established pursuant to paragraph 12 of UNSCR 1718 (2006) (‘the Sanctions Committee’) in accordance with paragraph 8(a)(ii) of UNSCR 1718 (2006), paragraph 5(b) of UNSCR 2087 (2013) and paragraph 20 of UNSCR 2094 (2013), which could contribute to the DPRK's nuclear-related, ballistic-missile-related or other weapons of mass destruction-related programmes;
certain other items, materials, equipment, goods and technology which could contribute to the DPRK's nuclear-related, ballistic-missile-related or other weapons of mass destruction-related programmes or which could contribute to its military activities, including all dual-use goods and technology listed in Annex I to Council Regulation (EC) No 428/2009⁽⁵⁾;
any further items, materials and equipment relating to dual-use goods and technology; the Union shall take the necessary measures in order to determine the relevant items to be covered by this point;
certain key components for the ballistic-missile sector, such as certain types of aluminium used in ballistic-missile-related systems; the Union shall take the necessary measures in order to determine the relevant items to be covered by this point;
any other item that could contribute to the DPRK's nuclear-related, ballistic-missile-related or other weapons of mass destruction-related programmes, to activities prohibited by UNSCR 1718 (2006), 1874 (2009), 2087 (2013), 2094 (2013) or 2270 (2016) or by this Decision, or to the evasion of measures imposed by those UNSCRs or by this Decision; the Union shall take the necessary measures in order to determine the relevant items to be covered by this point.
any other item, except food or medicine, if a Member State determines that it could contribute directly to the development of the operational capabilities of the DPRK's armed forces or to exports that support or enhance the operational capabilities of armed forces of another State outside the DPRK.

It shall also be prohibited to:

provide technical training, advice, services, assistance or brokering services, or other intermediary services, related to items or technology referred to in paragraph 1 or to the provision, manufacture, maintenance or use of those items, directly or indirectly, to any person, entity or body in, or for use in, the DPRK;
provide financing or financial assistance related to items or technology referred to in paragraph 1, including, in particular, grants, loans and export credit insurance, as well as insurance and reinsurance, for any sale, supply, transfer or export of those items or that technology, or for the provision of related technical training, advice, services, assistance or brokering services, directly or indirectly, to any person, entity or body in, or for use in, the DPRK;
participate, knowingly or intentionally, in activities the object or effect of which is to circumvent the prohibitions referred to in points (a) and (b).

The procurement from the DPRK by nationals of Member States, or using the flag vessels or aircraft of Member States, of items or technology referred to in paragraph 1, as well as the provision to nationals of Member States by the DPRK of technical training, advice, services, assistance, financing and financial assistance referred to in paragraph 2, shall also be prohibited, whether or not originating in the territory of the DPRK.

Article 2

The measures imposed by Article 1(1)(g) shall not apply to the supply, sale or transfer of an item, or its procurement, where:

the Member State determines that such activity is exclusively for humanitarian purposes or exclusively for livelihood purposes which will not be used by DPRK persons or entities to generate revenue, and is not related to any activity prohibited by UNSCR 1718 (2006), 1874 (2009), 2087 (2013), 2094 (2013) or 2270 (2016) or by this Decision, provided that the Member State notifies the Sanctions Committee in advance of such determination and informs the Sanctions Committee of measures taken to prevent the diversion of the item for such other purposes; or
the Sanctions Committee has determined on a case-by-case basis that a particular supply, sale or transfer would not be contrary to the objectives of UNSCR 1718 (2006), 1874 (2009), 2087 (2013), 2094 (2013) or 2270 (2016).

Article 3

The direct or indirect sale, purchase, transport or brokering of gold and precious metals, as well as of diamonds, to, from or for the Government of the DPRK, its public bodies, corporations and agencies or the Central Bank of the DPRK, as well as persons or entities acting on their behalf or at their direction, or entities owned or controlled by them, shall be prohibited.

The Union shall take the necessary measures in order to determine the relevant items to be covered by this Article.