27.4.2010   

EN

Official Journal of the European Union

L 105/1

(1)

On 20 November 2008, the United Nations Security Council (hereinafter referred to as the ‘Security Council’), acting under Chapter VII of the Charter of the United Nations, adopted Resolution 1844 (2008) confirming the general and complete arms embargo against Somalia imposed by the United Nations Security Council Resolution (UNSCR) 733 (1992) and introducing additional restrictive measures.

(2)

The additional restrictive measures concern restrictions on admission and financial restrictive measures against individuals and entities designated by the Security Council or by the United Nations Sanctions Committee established pursuant to UNSCR 751 (1992) concerning Somalia (hereinafter referred to as the ‘Sanctions Committee’). In addition to the general arms embargo, the Resolution introduces a specific prohibition on the direct and indirect supply, sale or transfer, of weapons and military equipment and a specific prohibition on the provision of related assistance and services, to individuals and entities listed by the Sanctions Committee.

(3)

The restrictive measures are aimed at individuals and entities designated by the United Nations (UN) as engaging in or providing support for acts that threaten the peace, security or stability of Somalia, including acts that threaten the Djibouti Agreement of 18 August 2008 or the political process, or threaten the Transitional Federal Institutions (TFIs) or the African Union Mission in Somalia (AMISOM) by force, as having acted in violation of the arms embargo and related measures, or as obstructing the delivery of humanitarian assistance to Somalia, or access to, or distribution of, humanitarian assistance in Somalia.

(4)

On 16 February 2009, the Council of the European Union adopted Common Position 2009/138/CFSP concerning restrictive measures against Somalia (2) which provides, inter alia, for financial restrictive measures concerning natural or legal persons, entities or bodies listed by the UN, as well as for a prohibition on the direct and indirect provision of assistance and services related to weapons and military equipment to such persons, entities or bodies.

(5)

On 19 March 2010, the Security Council adopted UNSCR 1916 (2010) which, inter alia, decided to ease some restrictions and obligations under the sanctions regime to enable the delivery of supplies and technical assistance by international, regional and sub-regional organisations and to ensure the timely delivery of urgently needed humanitarian assistance by the UN.

(6)

On 12 April 2010, the Sanctions Committee adopted the list of persons and entities which are subject to restrictive measures.

(7)

On that basis, on 26 April 2010 the Council adopted Decision 2010/231/CFSP.

(8)

These 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, an act of the Union is necessary in order to implement them as far as the Union is concerned.

(9)

Council Regulation (EC) No 147/2003 of 27 January 2003 concerning certain restrictive measures in respect of Somalia (3) imposed a general prohibition on the provision of technical advice, assistance, training, financing or financial assistance related to military activities, to any person, entity or body in Somalia. A new Council Regulation should be adopted to implement the measures concerning natural or legal persons, entities or bodies listed by the UN.

(10)

This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union (4) and 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 Regulation should be applied in accordance with those rights and principles.

(11)

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

(12)

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 in the region posed by the situation in Somalia and in order to ensure consistency with the process for amending and reviewing the Annex to Council Decision 2010/231/CFSP.

(13)

The procedure for amending the list in Annex I to this Regulation should include providing to designated natural or legal persons, entities or bodies the reasons for their listing as transmitted by the Sanctions Committee, so as to give them an opportunity to present 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.

(14)

In order to create maximum legal certainty within the Union, the names and other relevant data for identifying natural or legal persons, entities or bodies whose funds and economic resources are frozen in accordance with this Regulation should be published.

(15)

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).

(16)

Member States should determine the penalties applicable to infringements of the provisions of this Regulation. The penalties provided for should be proportionate, effective and dissuasive,

(a)

‘funds’ means financial assets and benefits of every kind, including but not limited to:

(b)

‘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;

(c)

‘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;

(d)

‘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;

(e)

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

(f)

‘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;

(g)

‘investment services’ means:

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 (7);

(h)

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

(i)

‘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.

(a)

interest or other earnings on those accounts; or

(b)

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,

(a)

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

(b)

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.

(a)

the funds or economic resources are the subject of a judicial, administrative or arbitral lien established before the date on which the natural or legal person, entity or body referred to in Article 2 has been designated by the Sanctions Committee or the Security Council or of a judicial, administrative or arbitral judgment rendered prior to that date;

(b)

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;

(c)

the lien or judgment is not for the benefit of a natural or legal person, entity or body listed in Annex I;

(d)

the lien or judgment is not contrary to public policy in the Member State concerned; and

(e)

the Sanctions Committee has been notified by the Member State of the lien or judgment.

(a)

technical assistance related to military activities or to the supply, sale, transfer, manufacture, maintenance or use of goods and technology included in the Common Military List of the European Union (8);

(b)

financing or financial assistance related to military activities or to the supply, sale, transfer, manufacture, maintenance or use of goods and technology included in the Common Military List of the European Union;

(c)

investment services related to military activities or to the supply, sale, transfer, manufacture, maintenance or use of goods and technology included in the Common Military List of the European Union.

(a)

supply immediately the competent authorities, as indicated on the websites listed in Annex II for the country where they are resident or located, with any information which would facilitate compliance with this Regulation, such as accounts and amounts frozen in accordance with Article 2, and shall forward such information, directly or through these competent authorities, to the Commission; and

(b)

cooperate with the competent authorities as indicated on the websites listed in Annex II in any verification of this information.

(a)

within the territory of the Union, including its airspace;

(b)

on board any aircraft or any vessel under the jurisdiction of a Member State;

(c)

to any person inside or outside the territory of the Union who is a national of a Member State;

(d)

to any legal person, entity or body which is incorporated or constituted under the law of a Member State;

(e)

to any legal person, entity or body in respect of any business done in whole or in part within the Union.

27.4.2010   

EN

Official Journal of the European Union

L 105/10

(1)

Commission Regulation (EC) No 820/2008 of 8 August 2008 laying down measures for the implementation of the common basic standards on aviation security (2) contains security procedures for supplies of liquids and tamper-evident bags. However, that Regulation will be repealed as from 29 April 2010.

(2)

Commission Regulation (EU) No 185/2010 of 4 March 2010 laying down detailed measures for the implementation of the common basic standards on aviation security (3) will replace Regulation (EC) No 820/2008. Regulation (EU) No 185/2010 does not contain security procedures for supplies of liquids and tamper-evident bags.

(3)

In order to protect civil aviation against acts of unlawful interference that jeopardise the security of civil aviation, security procedures for supplies of liquids, aerosols and gels and security tamper-evident bags sold airside at Union airports should be maintained. Therefore, it is necessary to include them in Regulation (EU) No 185/2010.

(4)

Regulation (EU) No 185/2010 will apply from 29 April 2010. The entry into force of this Regulation is therefore urgent as it should apply from the same date.

(5)

Regulation (EU) No 185/2010 should therefore be amended accordingly.

(6)

The measures provided for in this Regulation are in accordance with the opinion of the Committee on Civil Aviation Security set up by Article 19(1) of Regulation (EC) No 300/2008,

27.4.2010   

EN

Official Journal of the European Union

L 105/12

(1)

The restrictions on liquids, aerosols and gels carried by passengers arriving on flights from third countries and transferring at Union airports create certain operational difficulties at these airports and cause inconvenience to the passengers concerned.

(2)

Commission Regulation (EC) No 820/2008 of 8 August 2008 laying down measures for the implementation of the common basic standards on aviation security (2) provides for exemptions to the application of those restrictions to be granted if certain conditions are met. After having verified that those conditions have been met at airports in certain third countries and that those countries have a good record of cooperation with the Union and its Member States, the Commission has granted such exemptions.

(3)

As Regulation (EC) No 820/2008 is repealed from 29 April 2010 and thus those exemptions will also be repealed. However, the restrictions on liquids, aerosols and gels carried by passengers arriving on flights from third countries and transferring at Union airports remain in place as provided in Regulation (EU) No 297/2010 of 9 April 2010 amending Regulation (EC) No 272/2009 supplementing the common basic standards on civil aviation security. (3)

(4)

The exemptions to the application of the restrictions on liquids, aerosols and gels carried by passengers arriving on flights from third countries should therefore be extended whilst those restrictions remain in place, provided that those third countries continue to meet the conditions under which the exemptions were granted.

(5)

Regulation (EU) No 185/2010 of 4 March 2010 laying down detailed measures for the implementation of the common basic standards on aviation security (4) should therefore be amended accordingly.

(6)

Regulation (EU) No 297/2010 of 9 April 2010 will apply from 29 April 2010. The entry into force of this Regulation is therefore urgent as it should apply from the same date.

(7)

The measures provided for in this Regulation are in accordance with the opinion of the Committee on Civil Aviation Security set up by Article 19(1) of Regulation (EC) No 300/2008,

27.4.2010   

EN

Official Journal of the European Union

L 105/15

27.4.2010   

EN

Official Journal of the European Union

L 105/17

(1)

On 10 December 2002, the Council adopted Common Position 2002/960/CFSP concerning restrictive measures against Somalia (1) following United Nations Security Council Resolutions (UNSCR) 733 (1992), 1356 (2001) and 1425 (2002) relating to an arms embargo against Somalia.

(2)

On 16 February 2009, the Council adopted Common Position 2009/138/CFSP concerning restrictive measures against Somalia and repealing Common Position 2002/960/CFSP (2), implementing UNSCR 1844 (2008) which introduced restrictive measures against those who seek to prevent or block a peaceful political process, or those who threaten the Transitional Federal Institutions (TFIs) of Somalia or the African Union Mission in Somalia (AMISOM) by force, or take action that undermines stability in Somalia or in the region.

(3)

On 1 March 2010, the Council adopted Council Decision 2010/126/CFSP amending Common Position 2009/138/CFSP (3) and implementing UNSCR 1907 (2009) which called upon all States to inspect, in accordance with their national authorities and legislation and consistent with international law, all cargoes to and from Somalia, in their territory, including seaports and airports, if the State concerned has information that provides reasonable grounds to believe that the cargo contains items whose supply, sale, transfer or export is prohibited under the general and complete arms embargo to Somalia established pursuant to paragraph 5 of UNSCR 733 (1992) and elaborated and amended by subsequent resolutions.

(4)

On 19 March 2010, the United Nations Security Council (hereinafter referred to as the ‘Security Council’) adopted UNSCR 1916 (2010) which, inter alia, extended the mandate of the monitoring group referred to in paragraph 3 of UNSCR 1558 (2004) and decided to ease some restrictions and obligations under the sanctions regime to enable the delivery of supplies and technical assistance by international, regional and sub-regional organisations and to ensure the timely delivery of urgently needed humanitarian assistance by the United Nations (UN).

(5)

On 12 April 2010, the Sanctions Committee established by paragraph 11 of UNSCR 751 (1992) concerning Somalia (hereinafter referred to as the ‘Sanctions Committee’) adopted the list of persons and entities which are subject to restrictive measures.

(6)

For the sake of clarity, the measures imposed by Common Position 2009/138/CFSP as amended by Council Decision 2010/126/CFSP and the exemptions provided for in UNSCR 1916 (2010) should be integrated into a single legal instrument.

(7)

Common Position 2009/138/CFSP should therefore be repealed.

(8)

This Decision respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union (4) and 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.

(9)

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

(10)

The procedure for amending the Annex to this Decision should include providing to designated persons and entities the reasons for their listing as transmitted by the Sanctions Committee, so as to give them an opportunity to present observations. Where observations are submitted or where substantial new evidence is presented, the Council should review its decision in the light of those observations and inform the person or entity concerned accordingly.

(11)

Further action by the Union is needed in order to implement certain measures,

(a)

the supply, sale or transfer of arms and related material of all types and the direct or indirect supply of technical advice, financial and other assistance and training related to military activities intended solely for the support of or use by AMISOM as stipulated in paragraph 4 of UNSCR 1744 (2007) or for the sole use of States and regional organisations undertaking measures in accordance with paragraph 6 of UNSCR 1851 (2008) and paragraph 10 of UNSCR 1846 (2008);

(b)

the supply, sale or transfer of arms and related material of all types and to the direct or indirect supply of technical advice intended solely for the purpose of helping to develop security sector institutions, consistent with the political process set out in paragraphs 1, 2 and 3 of UNSCR 1744 (2007) and in the absence of a negative decision by the Sanctions Committee within five working days of receiving the relevant notification;

(c)

the supply, sale or transfer of non-lethal military equipment intended solely for humanitarian or protective use, or of material intended for institution building programmes of the Union, or Member States, including in the field of security, carried out within the framework of the Peace and Reconciliation Process, as approved in advance by the Sanctions Committee, and to protective clothing, including flak jackets and military helmets, temporarily exported to Somalia by UN personnel, representatives of the media and humanitarian and development workers and associated personnel for their personal use only.

—

engaging in or providing support for acts that threaten the peace, security or stability of Somalia, including acts that threaten the Djibouti Agreement of 18 August 2008 or the political process, or threaten the TFIs or AMISOM by force,

—

having acted in violation of the arms embargo and related measures as referred to in Article 1,

—

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

(a)

determines on a case-by-case basis that such entry or transit is justified on the grounds of humanitarian need, including religious obligation,

(b)

determines on a case-by-case basis that an exemption would otherwise further the objectives of peace and national reconciliation in Somalia and stability in the region.

(a)

necessary for basic expenses, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges;

(b)

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

(c)

intended exclusively for the payment of fees or service charges, in accordance with national laws, for routine holding or maintenance of frozen funds and economic resources;

(d)

necessary for extraordinary expenses, after notification by the Member State concerned to, and approval by, the Sanctions Committee;

(e)

the subject of a judicial, administrative or arbitral lien or judgment, in which case the funds and economic resources may be used to satisfy that lien or judgment provided that the lien or judgment was entered before designation by the Sanctions Committee of the person or entity concerned, and is not for the benefit of a person or entity referred to in Article 2, after notification by the Member State concerned to the Sanctions Committee.

(a)

interest or other earnings on those accounts; or

(b)

payments due under contracts, agreements or obligations that were concluded or arose before the date on which those accounts became subject to restrictive measures,

27.4.2010   

EN

Official Journal of the European Union

L 105/22

(1)

On 27 April 2006, the Council adopted Common Position 2006/318/CFSP renewing restrictive measures against Burma/Myanmar (1). Those measures replaced the previous measures, the first of which were adopted in 1996 in Common Position 96/635/CFSP (2).

(2)

Council Common Position 2009/351/CFSP (3) adopted on 27 April 2009 extended Common Position 2006/318/CFSP until 30 April 2010.

(3)

In view of the situation in Burma/Myanmar, in particular the lack of improvement in the human rights situation and the absence of substantive progress towards an inclusive democratisation process, notwithstanding the promulgation of a new electoral law and the announcement by the Government of Burma/Myanmar of multi-party elections to be held in 2010, the restrictive measures provided for in Common Position 2006/318/CFSP should be extended for a further period of 12 months.

(4)

The lists of persons and enterprises subject to the restrictive measures should be amended in order to take account of changes in the Government, the security forces, the State Peace and Development Council and the administration in Burma/Myanmar, as well as in the personal situations of the individuals concerned, and in order to update the list of enterprises that are owned or controlled by the regime in Burma/Myanmar or by persons associated with the regime.

(5)

Further action by the Union is needed in order to implement certain measures,

(a)

to provide technical assistance, brokering services and other services related to military activities and to the provision, manufacture, maintenance and use of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, as well as equipment which might be used for internal repression, directly or indirectly to any natural or legal person, entity or body in, or for use in Burma/Myanmar;

(b)

to provide financing or financial assistance related to military activities, including in particular grants, loans and export credit insurance for any sale, supply, transfer or export of arms and related materiel, as well as equipment which might be used for internal repression, or for the provision of related technical assistance, brokering and other services directly or indirectly to any person, entity or body in, or for use in Burma/Myanmar;

(c)

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

(a)

the sale, supply, transfer or export of non-lethal military equipment, or of equipment which might be used for internal repression, intended solely for humanitarian or protective use, or for institution-building programmes of the UN and the EU, or of materiel intended for EU and UN crisis management operations;

(b)

the sale, supply, transfer or export of demining equipment and materiel for use in demining operations;

(c)

the provision of financing and financial assistance related to such equipment or to such programmes and operations;

(d)

the provision of technical assistance related to such equipment or to such programmes and operations,

(a)

logging and timber processing;

(b)

mining of gold, tin, iron, copper, tungsten, silver, coal, lead, manganese, nickel and zinc;

(c)

mining and processing of precious and semi-precious stones, including diamonds, rubies, sapphires, jade and emeralds.

(a)

provide technical assistance or training related to relevant equipment and technology destined for enterprises in Burma/Myanmar that are engaged in the industries referred to in paragraph 1;

(b)

provide financing or financial assistance for any sale, supply, transfer or export of relevant equipment and technology destined for the enterprises in Burma/Myanmar listed in Annex I, that are engaged in the industries referred to in paragraph 1, or for the provision of related technical assistance or training.

(a)

round logs, timber and timber products;

(b)

gold, tin, iron, copper, tungsten, silver, coal, lead, manganese, nickel and zinc;

(c)

precious and semi-precious stones, including diamonds, rubies, sapphires, jade and emeralds.

(a)

the granting of any financial loan or credit to the enterprises in Burma/Myanmar, as listed in Annex I, that are engaged in the industries referred to in Article 3(1);

(b)

the acquisition or extension of a participation in the enterprises in Burma/Myanmar, as listed in Annex I, that are engaged in the industries referred to in Article 3(1), including the acquisition in full of such enterprises and the acquisition of shares and securities of a participating nature;

(c)

the creation of any joint venture with the enterprises in Burma/Myanmar, as listed in Annex I, that are engaged in the industries referred to in Article 3(1) and with any subsidiary or affiliate under their control.

(i)

shall be without prejudice to the execution of an obligation arising from contracts or agreements concluded before the date of listing of the enterprise concerned, as indicated in Annex I;

(ii)

shall not prevent the extension of a participation in the enterprises listed in Annex I, if such extension is provided for under an agreement concluded with the enterprise concerned before the date of its listing as indicated in Annex I.

(a)

human rights, democracy, good governance, conflict prevention and building the capacity of civil society;

(b)

health and education, poverty alleviation and in particular the provision of basic needs and livelihoods for the poorest and most vulnerable populations;

(c)

environmental protection and, in particular, programmes addressing the problem of non-sustainable, excessive logging resulting in deforestation.

(a)

senior members of the State Peace and Development Council (SPDC), Burmese authorities in the tourism sector, senior members of the military, the Government or the security forces who formulate, implement or benefit from policies that impede Burma/Myanmar's transition to democracy, and members of their families, being the natural persons listed in Annex II;

(b)

senior serving members of the Burmese military and members of their families, being the natural persons listed in Annex II.

(a)

as a host country of an international intergovernmental organisation;

(b)

as a host country to an international conference convened by, or under the auspices of, the United Nations;

(c)

under a multilateral agreement conferring privileges and immunities; or

(d)

under the 1929 Treaty of Conciliation (Lateran pact) concluded by the Holy See (State of the Vatican City) and Italy.

(a)

necessary to satisfy the basic needs of persons listed in Annex II and their dependent family members, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges;

(b)

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

(c)

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

(d)

necessary for extraordinary expenses, provided that the competent authority has notified the grounds on which it considers that a specific authorisation should be granted, to the other competent authorities and the Commission at least two weeks before the authorisation.

(a)

interest or other earnings on those accounts; or

(b)

payments due under contracts, agreements or obligations that were concluded or arose before the date on which those accounts became subject to restrictive measures,

(a)

the granting of any financial loan or credit to enterprises that are owned or controlled by the regime or by persons or entities associated with the regime, as listed in Annex III, or the acquisition of bonds, certificates of deposit, warrants or debentures, issued by these enterprises;

(b)

the acquisition or extension of a participation in enterprises that are owned or controlled by the regime or by persons or entities associated with the regime, as listed in Annex III, including the acquisition in full of such enterprises and the acquisition of shares and securities of a participating nature;

(c)

the creation of any joint venture with the enterprises as listed in Annex III, and with any subsidiary or affiliate under their control.