Council Decision 2010/638/CFSP of 25 October 2010 concerning restrictive measures in view of the situation in Guinea

Article 3

1.   Member States shall take the necessary measures to prevent the entry into, or transit through, their territories of the persons identified by the International Commission of Inquiry as responsible for the 28 September 2009 events in Guinea, and of the persons associated with them, as listed in the Annex.

2.   Paragraph 1 shall not oblige a Member State to refuse its own nationals entry into its territory.

3.   Paragraph 1 shall be without prejudice to the cases where a Member State is bound by an obligation of international law, namely:

(a) as a host country to an international intergovernmental organisation;

(b) as a host country to an international conference convened by, or under the auspices of, the UN;

(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.

4.   Paragraph 3 shall be considered as applying also in cases where a Member State is host country to the Organisation for Security and Cooperation in Europe (OSCE).

5.   The Council shall be duly informed in all cases where a Member State grants an exemption pursuant to paragraphs 3 or 4.

6.   Member States may grant exemptions from the measures imposed under paragraph 1 where travel is justified on the grounds of urgent humanitarian need, or on grounds of attending intergovernmental meetings, including those promoted by the Union, or hosted by a Member State holding the Chairmanship in office of the OSCE, where a political dialogue is conducted that directly promotes democracy, human rights and the rule of law in the Republic of Guinea.

7.   A Member State wishing to grant exemptions referred to in paragraph 6 shall notify the Council in writing. The exemption shall be deemed to be granted unless one or more of the Council members raises an objection in writing within two working days of receiving notification of the proposed exemption. Should one or more of the Council members raise an objection, the Council, acting by a qualified majority, may decide to grant the proposed exemption.

8.   In cases where pursuant to paragraphs 3, 4, 6 and 7, a Member State authorises the entry into, or transit through, its territory of persons listed in the Annex, the authorisation shall be limited to the purpose for which it is given and to the persons concerned thereby.

Article 4

1.   All funds and economic resources belonging to, owned, held or controlled by the persons identified by the International Commission of Inquiry as responsible for the 28 September 2009 events in Guinea, and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen.

2.   No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of, natural or legal persons, entities or bodies listed in the Annex.

3.   The competent authority of a Member State 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 it deems appropriate, after having determined that the funds or economic resources concerned are:

(a) necessary to satisfy the basic needs of the persons listed in the Annex 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 the payment of reasonable professional fees and the reimbursement of incurred expenses associated with the provision of legal services;

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

(d) necessary for extraordinary expenses, provided that the competent authority has notified the competent authority of the other Member States and the Commission of the grounds on which it considers that a specific authorisation should be granted, at least two weeks prior to the authorisation.

A Member State shall inform the other Member States and the Commission of any authorisation it grants under this paragraph.

4.   By way of derogation from paragraph 1, the competent authorities of a Member State may authorise the release of certain frozen funds or economic resources, provided that the following conditions are met:

(a) the funds or economic resources are the subject of a judicial, administrative or arbitral lien established prior to the date on which the natural or legal person, entity or body referred to in Article 4(1) was included in the Annex 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 the Annex; and

(d) recognising the lien or judgement is not contrary to public policy in the Member State concerned.

A Member State shall inform the other Member States and the Commission of any authorisation granted under this paragraph.

5.   Paragraph 2 shall not apply to the addition to frozen accounts of:

(a) interest or other earnings on those accounts; or

(b) payments due under contracts, agreements or obligations that were concluded or arose prior to the date on which those accounts became subject to Common Position 2009/788/CFSP,

provided that any such interest, other earnings and payments remain subject to paragraph 1.

6.   Paragraphs 1 and 2 shall not apply to the making available of funds or economic resources necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs where such assistance and other activities are carried out by:

(a) the United Nations (UN), including its programmes, funds and other entities and bodies, as well as its specialised agencies and related organisations;

(b) international organisations;

(c) humanitarian organisations having observer status with the UN General Assembly and members of those humanitarian organisations;

(d) bilaterally or multilaterally funded non-governmental organisations participating in the UN Humanitarian Response Plans, UN Refugee Response Plans, other UN appeals or humanitarian clusters coordinated by the UN Office for the Coordination of Humanitarian Affairs;

(e) organisations and agencies to which the Union has granted the Humanitarian Partnership Certificate or which are certified or recognised by a Member State in accordance with national procedures;

(f) Member States’ specialised agencies; or

(g) the employees, grantees, subsidiaries or implementing partners of the entities referred to in points (a) to (f) while and to the extent that they are acting in those capacities.

7.   Without prejudice to paragraph 6, and by way of derogation from paragraphs 1 and 2, the competent authorities of a Member State 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 provision of such funds or economic resources is necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs.

8.   In the absence of a negative decision, a request for information or a notification for additional time from the relevant competent authority within five working days of the date of receipt of a request for authorisation under paragraph 7, that authorisation shall be considered granted.

9.   The Member State concerned shall inform the other Member States and the Commission of any authorisations granted under paragraphs 7 and 8 within four weeks of such authorisation.

Article 5

1.   The Council, acting upon a proposal by a Member State or the High Representative of the Union for Foreign Affairs and Security Policy, shall adopt amendments to the list contained in the Annex as required by political developments in the Republic of Guinea.

2.   The Council shall communicate its decision, including the grounds for listing, to the person concerned, either directly, if the address is known, or through the publication of a notice, providing such person with an opportunity to present observations.

3.   Where observations are submitted, or where substantial new evidence is presented, the Council shall review its decision and inform the person concerned accordingly.

Article 5a

1.   The Council and the High Representative of the Union for Foreign Affairs and Security Policy (the ‘High Representative’) may process personal data in order to carry out their tasks under this Decision, in particular:

(a) as regards the Council, for preparing and making amendments to the Annex;

(b) as regards the High Representative, for preparing amendments to the Annex.

2.   The Council and the High Representative may process, where applicable, relevant data relating to criminal offences committed by listed natural persons, to criminal convictions of such persons or to security measures concerning such persons, only to the extent that such processing is necessary for the preparation of the Annex.

3.   For the purposes of this Decision, the Council and the High Representative are designated as ‘controllers’ within the meaning of point (8) of Article 3 of Regulation (EU) 2018/1725 of the European Parliament and of the Council ( ¹ ), in order to ensure that the natural persons concerned can exercise their rights under Regulation (EU) 2018/1725.

Article 6

In order to maximise the impact of the abovementioned measures, the EU shall encourage third States to adopt restrictive measures similar to those contained in this Decision.

Article 7

Common Position 2009/788/CFSP is hereby repealed.

Article 8

1.   This Decision shall enter into force on the date of its adoption.

2.   This Decision shall apply until 27 October 2025. It shall be kept under constant review. It shall be renewed or amended, as appropriate, if the Council deems that its objectives have not been met.

3.   The exceptions referred to in Article 4(6) and (7) as regards Article 4(1) and (2) shall be reviewed at regular intervals, and at least every 12 months, or at the urgent request of any Member State, the High Representative or the Commission following a fundamental change in circumstances.

Annex - List of persons referred to in articles 3 and 4

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