Council Regulation (EU) No 1284/2009 of 22 December 2009 concerning restrictive measures in view of the situation in Guinea

Article 1

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

(d) ‘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;

(vii) documents evidencing an interest in funds or financial resources;

(e) ‘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;

(f) ‘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;

(g) ‘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;

(h) ‘territory of the Union’ means the territories to which the Treaty is applicable, under the conditions laid down in the Treaty.

Article 6

1.   All funds and economic resources belonging to, owned, held or controlled by the natural or legal persons, entities or bodies listed in Annex II 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 II.

3.   Annex II shall consist of the persons identified by the International Commission of Inquiry as responsible for the 28 September 2009 events in the Republic of Guinea, and natural or legal persons, entities or bodies associated with them, as designated by the Council in accordance with Article 4(1) of Council Decision 2010/638/CFSP of 25 October 2010 concerning restrictive measures against the Republic of Guinea ( ¹ ).

4.   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 7

The prohibition set out in Article 6(2) shall not give rise to any liability of any kind on the part of the natural and legal persons, entities or bodies who made funds or economic resources available if they did not know, and had no reasonable cause to suspect, that their actions would infringe the prohibition in question.

Article 8

1.   By way of derogation from Article 6, the competent authorities of the Member States as indicated in the websites listed in Annex III 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 are:

(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 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 for routine holding or maintenance of frozen funds or economic resources; or

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

2.   The relevant Member State shall inform the other Member States and the Commission of any authorisation granted under paragraph 1.

Article 8a

1.   Article 6(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.

2.   Without prejudice to paragraph 1, and by way of derogation from Article 6(1) and (2), the competent authorities of the Member States as indicated in the websites listed in Annex III 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.

3.   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 2, that authorisation shall be considered granted.

4.   The Member State concerned shall inform the other Member States and the Commission of any authorisations granted under paragraphs 2 and 3 within four weeks of such authorisation.’.

Article 9

1.   By way of derogation from Article 6, the competent authorities of the Member States as indicated in the websites listed in Annex III may authorise the release of certain frozen funds or economic resources, if the following conditions are met:

(a) the funds or economic resources in question are the subject of a judicial, administrative or arbitral lien established prior to the date on which the person, entity or body referred to in Article 6 was included in Annex II, or of a judicial, administrative or arbitral judgment rendered prior to that date;

(b) the funds or economic resources in question 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 person, entity or body listed in Annex II; and

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

2.   The relevant Member State shall inform the other Member States and the Commission of any authorisation granted under paragraph 1.

Article 10

1.   Article 6(2) shall not prevent financial or credit institutions in the Union from crediting frozen accounts where they receive funds transferred to the account of a listed natural or legal person, entity or body, provided that any additions to such accounts will also be frozen. The financial or credit institution shall inform the relevant competent authority about any such transaction without delay.

2.   Article 6(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 before the date on which the natural or legal person, entity or body referred to in Article 3 has been included in Annex II,

provided that any such interest, other earnings, payments or financial instruments are frozen in accordance with Article 6(1).

Article 11

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 or entity or body implementing it, or its directors or employees, unless it is proved that the funds and economic resources were frozen or withheld as a result of negligence.

Article 12

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

(a) supply immediately any information which would facilitate compliance with this Regulation, such as accounts and amounts frozen in accordance with Article 6, to the competent authorities of Member States as indicated in the websites listed in Annex III for the country where they are resident or located and shall transmit such information, directly or through the competent authority as indicated in the websites listed in Annex III, to the Commission; and

(b) cooperate with that competent authority in any verification of this information.

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

3.   Any information provided or received in accordance with this Article shall be used only for the purposes for which it was provided or received.

Article 13

The Commission and the 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 judgments handed down by national courts.

Article 14

Annex II shall include, where available, information on listed natural persons for the purpose of identifying sufficiently the persons concerned.

Such information may include:

(a) surname and given names, including alias names and titles, if any;

(b) date and place of birth;

(c) nationality;

(d) passport and identity card numbers;

(e) fiscal and social security numbers;

(f) gender;

(g) address or other information on whereabouts;

(h) function or profession;

(i) date of designation.

Annex II may also include information for identification purposes as set out above for family members of the persons listed, provided that this information is necessary in a specific case for the sole purpose of verifying the identity of the listed natural person in question.

Annex II shall also include the grounds for listing, such as occupation.

Article 15

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

Article 15a

1.   Where the Council decides to subject a natural or legal person, entity or body to the measures referred to in Article 6(1), it shall amend Annex II accordingly.

2.   The Council shall communicate its decision, including the grounds for listing, to the natural or legal person, entity or body referred to in paragraph 1, 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.

3.   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.

4.   The list in Annex II shall be reviewed at regular intervals and at least every 12 months.

Article 16

1.   Member States shall lay down the rules on penalties applicable to infringements 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.

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

Article 16a

1.   The Council, the Commission 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 Regulation. These tasks include:

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

(b) as regards the High Representative, preparing amendments to Annex I;

(c) as regards the Commission:

(i) adding the contents of Annex I to the electronic consolidated list of persons, groups and entities subject to Union financial restrictive measures and in the interactive sanctions map, both publicly available;

(ii) processing information on the impact of measures taken under this Regulation, such as the value of frozen funds and information on authorisations granted by the competent authorities.

2.   The Council, the Commission 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 Annex I.

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

Article 17

1.   Member States shall designate the competent authorities referred to in this Regulation and identify them in, or through, the websites listed in Annex III.

2.   Member States shall notify the Commission of their competent authorities without delay after the entry into force of this Regulation and shall notify it of any subsequent amendment.

3.   Where there is, in this Regulation, a requirement to notify, inform or otherwise communicate with the Commission, the address and other contact details to be used for such communication shall be those indicated in Annex III.

Article 18

This Regulation shall apply:

(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.

Article 19

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 - List of natural and legal persons, entities or bodies referred to in article 6(3)

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

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Initial version

Amended by