Council Regulation (CFSP) 2024/287 of 12 January 2024 concerning restrictive measures in view of the situation in Guatemala

Article 1

For the purposes of this Regulation, the following definitions 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 in particular: (i) a claim for performance of any obligation arising under or in connection with a contract or transaction; (ii) a claim for extension or payment of a bond, financial guarantee or indemnity of whatever form; (iii) a claim for compensation in respect of a contract or transaction; (iv) a counterclaim; (v) a claim 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’ means 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; (vii) documents showing evidence of an interest in funds or financial resources;

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

Article 2

1.   All funds and economic resources belonging to, owned, held or controlled by any natural or legal person, entity or body as listed in Annex I 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 Annex I.

3.   Annex I shall include natural or legal persons, entities or bodies:

(a) responsible for, engaging in, providing support to, or benefiting from, actions that undermine democracy, the rule of law or the peaceful transfer of power in Guatemala, including: (i) persecution or intimidation of public officials or public institutions involved in or supporting the electoral process, of democratically-elected authorities or of the democratic opposition in Guatemala; (ii) repression, persecution or intimidation of representatives of civil society or of the media, or of judges, lawyers or prosecutors;

(b) undermining democracy or the rule of law in Guatemala through serious financial misconduct concerning public funds or the unauthorised export of capital;

(c) associated with the natural persons designated under points (a) and (b).

Article 3

1.   By way of derogation from Article 2(1) and (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, and dependent family members of such natural persons, including payments for food, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges;

(b) intended exclusively for the payment of reasonable professional fees or 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;

(d) necessary for extraordinary expenses, provided that the relevant competent authority has notified the competent authorities of the other Member States and the Commission of the grounds on which it considers that a specific authorisation should be granted, at least 2 weeks prior to the authorisation; or

(e) to be paid into or from an account of a diplomatic or consular mission or an international organisation enjoying immunities in accordance with international law, insofar as such payments are intended to be used for official purposes of the diplomatic or consular mission or international organisation.

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

Article 4

1.   Article 2(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 and 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 mentioned 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 2(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.

3.   In the absence of a negative decision, a request for information or a notification for additional time from the relevant competent authority within 5 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 4 weeks of such authorisation.

Article 5

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

(a) the funds or economic resources are the subject of an arbitral decision rendered prior to the date on which the natural or legal person, entity or body referred to in Article 2 was listed in Annex I, 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 decision or recognised as valid in such a decision, within the limits set by applicable laws and regulations governing the rights of persons having such claims;

(c) the decision is not for the benefit of a natural or legal person, entity or body listed in Annex I; and

(d) recognition of the decision is not contrary to public policy in the Member State concerned.

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

Article 6

1.   By way of derogation from Article 2(1) and provided that a payment by a natural or legal person, entity or body listed in Annex I is due under a contract or agreement that was concluded by, or an obligation that arose for, the natural or legal person, entity or body concerned, before the date on which that natural or legal person, entity or body was included in Annex I, the competent authorities may authorise, under such conditions as they deem appropriate, the release of certain frozen funds or economic resources, provided that the competent authority concerned has determined that:

(a) the funds or economic resources will be used for a payment by a natural or legal person, entity or body listed in Annex I; and

(b) the payment is not in breach of Article 2(2).

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

Article 7

1.   Article 2(2) shall not prevent the crediting of frozen accounts by financial or credit institutions that receive funds transferred by third parties onto 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 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 before the date on which the natural or legal person, entity or body referred to in Article 2 was included in Annex I; or

(c) payments due under judicial, administrative or arbitral decisions rendered in a Member State or enforceable in the Member State concerned;

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

Article 8

1.   Natural and legal persons, entities and bodies shall:

(a) supply immediately any information which would facilitate compliance with this Regulation, such as information on accounts and amounts frozen in accordance with Article 2(1), to the competent authority of the Member State where they are resident or located, and transmit such information, directly or through the Member State, to the Commission; and

(b) cooperate with the competent authority in any verification of the information referred to in point (a).

2.   The obligation in paragraph 1 shall apply subject to national or other applicable rules regarding the confidentiality of information held by judicial authorities, and consistent with respect for the confidentiality of communications between lawyers and their clients guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union. For this purpose, such communications include those relating to legal advice provided by other certified professionals who are authorised under national law to represent their clients in judicial proceedings, insofar as such legal advice is provided in connection with pending or prospective judicial proceedings.

3.   Any additional information received directly by the Commission shall be made available to the Member States.

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

5.   The competent authorities of the Member States, including enforcement authorities, customs authorities within the meaning of Regulation (EU) No 952/2013 of the European Parliament and of the Council, competent authorities within the meaning of Regulation (EU) No 575/2013, Directive (EU) 2015/849 and Directive 2014/65/EU of the European Parliament and of the Council, as well as administrators of official registers wherein natural persons, legal persons, entities and bodies as well as immovable or movable property are registered, shall process and exchange without delay information, including personal data and, if necessary, the information referred to in paragraph 1, with other competent authorities of their Member State, of other Member States and the Commission, if such processing and exchange is necessary to carry out the tasks of the processing authority or the receiving authority under this Regulation, in particular when they detect instances of a breach or circumvention, or attempts at a breach or circumvention, of the prohibitions set out in this Regulation.

Article 9

1.   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 Article 2.

2.   Natural or legal persons, entities or bodies listed in Annex I, shall:

(a) report within 6 weeks from the date of listing in Annex I funds or economic resources within the jurisdiction of a Member State belonging to, owned, held or controlled by them, to the competent authority of the Member State where those funds or economic resources are located; and

(b) cooperate with the competent authority in any verification of such information.

3.   Failure to comply with paragraph 2 shall be considered as participation, as referred to in paragraph 1, in activities the object or effect of which is to circumvent the measures referred to in Article 2.

4.   The Member State concerned shall inform the Commission within 2 weeks of the information received pursuant to paragraph 2(a).

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

6.   Any processing of personal data shall be carried out in accordance with this Regulation, Regulation (EU) 2016/679 and Regulation (EU) 2018/1725 of the European Parliament and of the Council and only in so far as necessary for the application of this Regulation.

Article 10

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 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.

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 measures set out in this Regulation.

Article 11

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) natural or legal persons, entities or bodies listed in Annex I;

(b) any natural or legal person, entity or body acting through or on behalf of one of the natural or legal 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 by 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 12

1.   The Commission and Member States shall inform each other of the measures taken under this Regulation and share any other relevant information at their disposal in connection with this Regulation, in particular information in respect of:

(a) funds frozen under Article 2 and authorisations granted under the derogations set out in this Regulation;

(b) violation and enforcement problems and judgments handed down by national courts.

2.   The Member States shall immediately inform each other and the Commission of any other relevant information at their disposal which might affect the effective implementation of this Regulation.

Article 13

1.   Where the Council decides to subject a natural or legal person, entity or body to the measures referred to in Article 2, it shall amend Annex I accordingly.

2.   The Council shall communicate a decision pursuant to paragraph 1, including the grounds for the listing, to the natural or legal person, entity or body concerned, either directly, if the address is known, or through the publication of a notice, providing that natural or legal person, entity or body with an opportunity to submit observations.

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

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

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

Article 14

1.   Annex I shall include the grounds for the listing of natural or legal persons, entities or bodies concerned.

2.   Annex I shall contain, where available, the information necessary to identify the natural or legal persons, entities or bodies concerned. With regard to natural persons, such information may include names and 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 or bodies, such information may include names, place and date of registration, registration number and place of business.

Article 15

1.   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 also provide for appropriate measures of confiscation of the proceeds of such infringements.

2.   Member States shall notify the Commission of the rules referred to in paragraph 1 without delay after the entry into force of this Regulation and shall notify it of any subsequent amendment.

Article 16

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 sanctions and to the interactive sanctions map, both of which are publicly available; (ii) processing information on the impact of the measures of 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 shall 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 and the High Representative are designated as ‘controller’ within the meaning of Article 3, point 8, of Regulation (EU) 2018/1725 in order to ensure that the natural persons concerned can exercise their rights under that Regulation.

Article 17

1.   Member States shall designate the competent authorities referred to in this Regulation and identify them on the websites listed in Annex II. Member States shall notify the Commission of any changes in the addresses of their websites listed in Annex II.

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

3.   Where this Regulation sets out 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 II.

Article 18

Any information provided to or received by the Commission in accordance with this Regulation shall be used by the Commission only for the purposes for which it was provided or received.

Article 19

This Regulation shall apply:

(a) within the territory of the Union, including its airspace;

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

(c) to any natural 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, inside or outside the territory of the Union, 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 20

This Regulation shall enter into force on the day following that 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 AND BODIES REFERRED TO IN ARTICLE 2

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ANNEX II WEBSITES FOR INFORMATION ON THE COMPETENT AUTHORITIES AND ADDRESS FOR NOTIFICATIONS TO THE COMMISSION

BELGIUM

https://diplomatie.belgium.be/en/policy/policy_areas/peace_and_security/sanctions

BULGARIA

https://www.mfa.bg/en/EU-sanctions

CZECHIA

https://fau.gov.cz/en/international-sanctions

DENMARK

http://um.dk/da/Udenrigspolitik/folkeretten/sanktioner/

GERMANY

https://www.bmwi.de/Redaktion/DE/Artikel/Aussenwirtschaft/embargos-aussenwirtschaftsrecht.html

ESTONIA

https://vm.ee/sanktsioonid-ekspordi-ja-relvastuskontroll/rahvusvahelised-sanktsioonid

IRELAND

https://www.dfa.ie/our-role-policies/ireland-in-the-eu/eu-restrictive-measures/

GREECE

http://www.mfa.gr/en/foreign-policy/global-issues/international-sanctions.html

SPAIN

https://www.exteriores.gob.es/es/PoliticaExterior/Paginas/SancionesInternacionales.aspx

FRANCE

http://www.diplomatie.gouv.fr/fr/autorites-sanctions/

CROATIA

https://mvep.gov.hr/vanjska-politika/medjunarodne-mjere-ogranicavanja/22955

ITALY

https://www.esteri.it/it/politica-estera-e-cooperazione-allo-sviluppo/politica_europea/misure_deroghe/

CYPRUS

https://mfa.gov.cy/themes/

LATVIA

http://www.mfa.gov.lv/en/security/4539

LITHUANIA

http://www.urm.lt/sanctions

LUXEMBOURG

https://maee.gouvernement.lu/fr/directions-du-ministere/affaires-europeennes/organisations-economiques-int/mesures-restrictives.html

HUNGARY

https://kormany.hu/kulgazdasagi-es-kulugyminiszterium/ensz-eu-szankcios-tajekoztato

MALTA

https://smb.gov.mt/

NETHERLANDS

https://www.rijksoverheid.nl/onderwerpen/internationale-sancties

AUSTRIA

https://www.bmeia.gv.at/themen/aussenpolitik/europa/eu-sanktionen-nationale-behoerden/

POLAND

https://www.gov.pl/web/dyplomacja/sankcje-miedzynarodowe

https://www.gov.pl/web/diplomacy/international-sanctions

PORTUGAL

https://portaldiplomatico.mne.gov.pt/politica-externa/medidas-restritivas

ROMANIA

http://www.mae.ro/node/1548

SLOVENIA

http://www.mzz.gov.si/si/omejevalni_ukrepi

SLOVAKIA

https://www.mzv.sk/europske_zalezitosti/europske_politiky-sankcie_eu

FINLAND

https://um.fi/pakotteet

SWEDEN

https://www.regeringen.se/sanktioner

Address for notifications to the European Commission:

Email: relex-sanctions@ec.europa.eu

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