Council Regulation (EC) No 1183/2005 of 18 July 2005 concerning restrictive measures in view of the situation in the Democratic Republic of the Congo

Article 1

For the purposes of this Regulation, the following definitions shall apply:

(a) ‘claim’ means any claim, whether asserted by legal proceedings or not, made before or after the date of entry into force of this Regulation, under or in connection with a contract or transaction, and includes in particular a claim:

(i) for performance of any obligation arising under or in connection with a contract or transaction;

(ii) for extension or payment of a bond, financial guarantee or indemnity of whatever form;

(iii) for compensation in respect of a contract or transaction;

(iv) which is a counterclaim;

(v) for the recognition or enforcement, including by the procedure of exequatur, of a judgment, an arbitration award or an equivalent decision, wherever made or given;

(b) ‘contract or transaction’ means any transaction of whatever form and whatever the applicable law, whether comprising one or more contracts or similar obligations made between the same or different parties; for this purpose ‘contract’ includes a bond, guarantee or indemnity, particularly a financial guarantee or financial indemnity, and credit, whether legally independent or not, as well as any related provision arising under, or in connection with, the transaction;

(c) ‘competent authorities’ refers to the competent authorities of the Member States as identified on the websites listed in Annex II;

(d) ‘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;

(e) ‘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;

(f) ‘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;

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

(i) cash, cheques, claims on money, drafts, money orders and other payment instruments;

(ii) deposits with financial institutions or other entities, balances on accounts, debts and debt obligations;

(iii) publicly-and privately-traded securities and debt instruments, including stocks and shares, certificates representing securities, bonds, notes, warrants, debentures and derivatives contracts;

(iv) interest, dividends or other income on or value accruing from or generated by assets;

(v) credit, right of set-off, guarantees, performance bonds or other financial commitments;

(vi) letters of credit, bills of lading, bills of sale; and

(vii) documents showing evidence of an interest in funds or financial resources;

(h) ‘technical assistance’ means any technical support related to repairs, development, manufacture, assembly, testing, maintenance, or any other technical service, in the form of an instruction, advice, training, transmission of working knowledge or skills or consulting services and including verbal forms of assistance;

(i) ‘brokering services’ means:

(i) the negotiation or arrangement of transactions for the purchase, sale or supply of goods and technology or of financial and technical services, from a third country to any other third country, or

(ii) the selling or buying of goods and technology or of financial and technical services, that are located in third countries for their transfer to another third country;

(j) ‘territory of the Union’ means the territories of the Member States to which the Treaty is applicable, under the conditions laid down in the Treaty, including their airspace.

Article 1a

1.   It shall be prohibited to provide, directly or indirectly:

(a) technical assistance or brokering services related to the goods and technology listed in the Common Military List of the European Union ( ¹ ) (‘Common Military List’) or related to the provision, manufacture, maintenance and use of goods included in that list, to any non-governmental entity or person operating in the territory of the Democratic Republic of Congo (‘DRC’);

(b) financing or financial assistance related to the sale, supply, transfer or export of goods and technology listed in the Common Military List, including in particular grants, loans and export credit insurance, as well as insurance and reinsurance, for any sale, supply, transfer or export of such items, or for any provision of related technical assistance or brokering services to any non-governmental entity or person operating in the territory of the DRC;

2.   The provision of technical assistance, financing or financial assistance or brokering services related to military activities to any non-governmental or other person, entity or body in the DRC, or for use in the DRC, other than provision of that assistance to the United Nations Organisation Stabilisation Mission in the DRC (‘Monusco’) or the African Union Regional Task Force, or related to non-lethal military equipment intended solely for humanitarian or protective use in accordance with Article 1b(1), shall be notified in advance to the Sanctions Committee established pursuant to paragraph 8 of UN Security Council Resolution 1533 (2004) (the ‘Sanctions Committee’). Such notification shall contain all relevant information, including, where appropriate, the end-user, the proposed date of delivery and the itinerary of shipments.

Article 1b

1.   By way of derogation from Article 1a, the competent authorities may authorise the provision of:

(a) technical assistance, financing or financial assistance or brokering services related to arms and related material intended solely for the support of or use by Monusco;

(b) technical assistance, financing or financial assistance or brokering services related to non-lethal military equipment intended solely for humanitarian or protective use;

(c) technical assistance, financing or financial assistance or brokering services related to arms and related material intended solely for the support of or use by the African Union Regional Task Force;

(d) technical assistance, financing or financial assistance or brokering services related to other sales and supply of arms and related materiel, as approved in advance by the Sanctions Committee.

2.   No authorisations shall be granted for activities that have already taken place.

Article 2

1.   All funds and economic resources belonging to, owned, held or controlled, either directly or indirectly, by a natural or legal person, entity or body listed in Annex I or Annex Ia including by a third party acting on their behalf or at their direction, 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 or Annex Ia.

3. 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, 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 United Nations General Assembly and members of those humanitarian organisations;

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

(e) the employees, grantees, subsidiaries, or implementing partners of the entities mentioned in points (a) to (d) while and to the extent that they are acting in those capacities; or by,

(f) appropriate other actors as regards Annex I, and by the Council as regards Annex Ia.

Article 2a

1.   Annex I shall include the natural or legal persons, entities or bodies designated by the Sanctions Committee for engaging in or providing support for acts that undermine the peace, stability or security of the DRC. Such acts shall include:

(a) acting in violation of the arms embargo and related measures as referred to in Article 1 of Decision 2010/788/CFSP and Article 1a of this Regulation;

(b) being political and military leaders of foreign armed groups operating in the DRC who impede the disarmament and the voluntary repatriation or resettlement of combatants belonging to those groups;

(c) being political and military leaders of Congolese militias, including those receiving support from outside the DRC, who impede the participation of their combatants in disarmament, demobilisation and reintegration processes;

(d) recruiting or using children in armed conflict in violation of applicable international law;

(e) planning, directing, or committing acts in the DRC that constitute human rights violations or abuses or violations of international humanitarian law, as applicable, including those acts involving the targeting of civilians, including killing and maiming, rape and other sexual violence, abduction, forced displacement, and attacks on schools and hospitals;

(f) obstructing the access to or the distribution of humanitarian assistance in the DRC;

(g) supporting individuals or entities, including armed groups or criminal networks, involved in destabilizing activities in the DRC through the illicit exploitation or trade of natural resources, including gold or wildlife as well as wildlife products;

(h) acting on behalf of or at the direction of a designated person or entity, or acting on behalf of or at the direction of an entity owned or controlled by a designated person or entity;

(i) planning, directing, sponsoring or participating in attacks against MONUSCO peacekeepers or United Nations personnel, including members of the Group of Experts, or against medical personnel or humanitarian personnel;

(j) providing financial, material, or technological support for, or goods or services to a designated person or entity;

(k) being involved in the production, manufacture or use in the DRC of improvised explosive devices, or in the commission, planning, ordering, aiding of, abetting or otherwise assisting attacks in the DRC with improvised explosive devices.

2.   Annex I shall include the grounds for listing natural or legal persons, entities or bodies, as provided by the UN Security Council or by the Sanctions Committee.

3.   Annex I shall also include, where available, information necessary to identify the natural or legal persons, entities and bodies concerned, as provided by the UN Security Council or by the Sanctions Committee. With regard to natural persons, such information may include names, including aliases, date and place of birth, nationality, passport and identity 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. Annex I shall also include the date of designation by the UN Security Council or by the Sanctions Committee.

Article 2b

1.   Annex Ia shall include the natural or legal persons, entities or bodies designated by the Council on any of the following grounds:

(a) obstructing a consensual and peaceful solution towards elections in the DRC, including by acts of violence, repression or inciting violence, or by undermining the rule of law;

(b) planning, directing, or committing acts that constitute serious human rights violations or abuses in the DRC;

(c) being responsible for sustaining the armed conflict, instability or insecurity in the DRC;

(d) providing support to natural or legal persons, entities or bodies responsible for sustaining the armed conflict, instability or insecurity in the DRC;

(e) inciting violence in connection with the actions mentioned in points (b), (c) and (d);

(f) exploiting the armed conflict, instability or insecurity in the DRC, including through the illicit exploitation or trade of natural resources and wildlife;

(g) being associated with natural or legal persons, entities or bodies referred to in points (a), (b), (c), (d), (e) or (f).

2.   Annex Ia shall include the grounds for listing the persons and entities referred to therein.

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

Article 3

1.   By way of derogation from Article 2, the competent authorities 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 concerned are:

(a) necessary to satisfy the basic needs of natural or legal persons, entities or bodies listed in Annex I or Annex Ia and dependent family members of such natural persons, 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; or

(c) intended exclusively for payment of fees or services charges for routine holding or maintenance of frozen funds or economic resources, and

where the authorisation concerns a person, entity and body listed in Annex I, 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 four working days of notification.

2.   By way of derogation from Article 2, the competent authorities 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:

(a) where the authorisation concerns a natural or legal person, entity or body listed in Annex I, the Sanctions Committee has been notified of this determination by the Member State concerned and that the determination has been approved by that Committee; and

(b) where the authorisation concerns a natural or legal person, entity or body listed in Annex Ia, the Member State concerned has notified 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.

3.   For a natural or legal person, entity or body listed in Annex Ia, the Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraphs 1 and 2.

Article 4

1.   By way of derogation from Article 2, the competent authorities may authorise the release of certain frozen funds or economic resources, provided the following conditions are met:

(a) the funds or economic resources are the subject of:

(i) a judicial, administrative or arbitral lien established prior to 18 April 2005 or of a judicial, administrative or arbitral judgement rendered prior to that date, for a natural or legal person, entity or body listed in Annex I; or

(ii) an arbitral decision rendered prior to the date on which the natural or legal person, entity or body was listed in Annex Ia, or of a judicial or administrative decision rendered in the Union, or a judicial decision enforceable in the Member State concerned, prior to or after 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 judgement, within the limits set by applicable laws and regulations governing the rights of persons having such claims;

(c) the lien or judgement is not for the benefit of a person, entity or body listed in Annex I or Annex Ia;

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

2.   For a natural or legal person, entity or body listed in Annex I, the lien or judgement referred to in paragraph 1(a)(i) shall be notified by the Member State to the Sanctions Committee.

3.   For a natural or legal person, entity or body listed in Annex Ia, the Member State concerned shall inform the other Member States and the Commission of any authorisation granted under this Article.

Article 4b

1.   Without prejudice to Article 2(3), by way of derogation from Article 2(1) and (2), the competent authorities of the Member States may authorise the release of frozen funds or economic resources belonging to natural or legal persons, entities or bodies listed in Annex Ia, or the making available of certain funds or economic resources to natural or legal persons, entities or bodies listed in Annex Ia, under such conditions as they deem appropriate, after having determined that the provision of such funds or economic resources is necessary for humanitarian purposes, such as delivering or facilitating the delivery of assistance, including medical supplies and food, or the transfer of humanitarian workers and related assistance or for evacuations from DRC.

2.   The Member State concerned shall inform other Member States and the Commission of authorisations made under this Article within four weeks of the authorisation.

Article 5

1.   Article 2(2) shall not apply to the addition to frozen accounts of:

(a) interest or other earnings on those accounts;

(b) payments due under contracts, agreements or obligations that were concluded or arose prior to the date on which those accounts became subject to this Regulation;

(c) payments due to a natural or legal person, entity or body listed in Annex Ia under judicial, administrative or arbitral decisions rendered in the EU or enforceable in the Member State concerned,

provided that any such interest, other earnings and payments are frozen in accordance with Article 2(1).

2.   Article 2(2) shall not prevent the crediting of the frozen accounts by financial or credit institutions that receive funds transferred by third parties to the account of the natural or legal person, entity or body listed in Annexes I or Ia, provided that any such additions to such accounts are frozen. The financial or credit institutions shall inform the competent authorities about such transactions without delay.

Article 6

1.   Without prejudice to the applicable rules concerning reporting, confidentiality and professional secrecy, natural and legal persons, entities and bodies shall:

(a) supply immediately any information which would facilitate compliance with this Regulation, such as accounts and amounts frozen in accordance with Article 2, to the competent authorities of the Member States where they are resident or located, and shall transmit such information, directly or through these competent authorities, to the Commission;

(b) cooperate with the competent authorities in any verification of this information.

2.   Any additional information directly received by the Commission shall be made available to the competent authorities of the Member State concerned.

3.   Any information provided or received in accordance with paragraphs 1 and 2 shall be used only for the purposes for which it was provided or received.

Article 7

1.   The freezing of funds and economic resources or the refusal to make funds or economic resources available, carried out in good faith on the basis that such action is in accordance with this Regulation, shall not give rise to liability of any kind on the part of the natural or legal person, entity or body implementing it, or its directors or employees, unless it is proved that the funds and economic resources were frozen as result of negligence.

2.   Actions by natural or legal persons, entities or bodies shall not give rise to any liability of any kind on their part if they did not know, and had no reasonable cause to suspect, that their actions would infringe the prohibitions set out in this Regulation.

Article 7a

1.   No claims in connection with any contract or transaction the performance of which has been affected, directly or indirectly, in whole or in part, by the measures imposed under this Regulation, including claims for indemnity or any other claim of this type, such as a claim for compensation or a claim under a guarantee, notably a claim for extension or payment of a bond, guarantee or indemnity, particularly a financial guarantee or financial indemnity, of whatever form, shall be satisfied, if they are made by:

(a) designated natural or legal persons, entities or bodies listed in Annexes I and Ia;

(b) any natural or legal person, entity or body acting through or on behalf of one of the persons, entities or bodies referred to in point (a).

2.   In any proceedings for the enforcement of a claim, the onus of proving that satisfying the claim is not prohibited under paragraph 1 shall be on the natural or legal person, entity or body seeking the enforcement of that claim.

3.   This Article is without prejudice to the right of the natural or legal persons, entities and bodies referred to in paragraph 1 to judicial review of the legality of the non-performance of contractual obligations in accordance with this Regulation.

Article 7b

It shall be prohibited to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent the measures referred to in Articles 1a, 2(1) and 2(2).

Article 8

The Commission and Member States shall immediately inform each other of the measures taken under this Regulation and shall supply each other with any other relevant information at their disposal in connection with this Regulation, in particular information in respect of violation and enforcement problems and judgements handed down by national courts.

Article 9

1.   Where the UN Security Council or the Sanctions Committee designates a natural or legal person, entity or body, the Council shall include such natural or legal person, entity or body in Annex I.

2.   The Council shall establish and amend the list of natural or legal persons, entities or bodies in Annex Ia.

3.   The Council shall communicate its decision, including the grounds for listing, to the natural or legal person, entity or body referred to in paragraphs 1 and 2, either directly, if the address is known, or through the publication of a notice, providing such natural or legal person, entity or body with an opportunity to present observations.

4.   Where observations are submitted, or where substantial new evidence is presented, the Council shall review its decision and inform the natural or legal person, entity or body accordingly.

5.   Where the UN Security Council or the Sanctions Committee decides to delist a natural or legal person, entity or body, or to amend the identification data for a listed natural or legal person, entity or body, the Council shall amend Annex I accordingly.

6.   The Commission shall be empowered to amend Annex II on the basis of information supplied by Member States.

Article 10

Member States shall lay down the rules on penalties applicable to infringements of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.

Member States shall notify those rules to the Commission without delay after the entry into force of this Regulation and shall notify it of any subsequent amendment.

Article 11

This Regulation shall apply

(a) within the territory of the Community, 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 Community 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 doing business within the Community.

Article 12

This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Annex I

Show

Annex Ia - List of natural or legal persons, entities and bodies referred to in Article 2b

Show

Annex II - Websites for information on the competent authorities and address for notification to the European Commission

Show

Initial Version

Amended by

Corrected by