Council Regulation (EU) 2015/738 of 7 May 2015 concerning restrictive measures in respect of the situation in South Sudan

Article 1

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

(a) ‘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;

(b) ‘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:

(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;

(c) ‘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 that purpose ‘contract’ includes a bond, guarantee or indemnity, in particular 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;

(d) ‘competent authorities’ means the competent authorities of the Member States as identified on the websites listed in Annex III;

(e) ‘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;

(f) ‘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;

(g) ‘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;

(h) ‘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;

(i) ‘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;

(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 2

It shall be prohibited to provide:

(1) technical assistance, brokering services or other services related to military activities or 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 therefor, directly or indirectly to any natural or legal person, entity or body in, or for use in South Sudan;

(2) financing or financial assistance related to military activities, including in particular grants, loans and export credit insurance, as well as insurance and reinsurance, for any sale, supply, transfer or export of arms and related materiel, or for the provision of related technical assistance, brokering services or other services directly or indirectly to any natural or legal person, entity or body in, or for use in South Sudan;

(3) technical assistance, financing or financial assistance or brokering services related to the provision of armed mercenary personnel in South Sudan or for use in South Sudan.

Article 3

The prohibitions referred to in Article 2 shall not apply to the provision of financing and financial assistance, technical assistance and brokering services related to:

(a) arms and related materiel, intended solely for the support of or use by UN personnel, including the United Nations Mission in the Republic of South Sudan (UNMISS) and the United Nations Interim Security Force for Abyei (UNISFA);

(b) protective clothing, including flak jackets and military helmets, temporarily exported to South Sudan by UN personnel, representatives of the media and humanitarian and development workers and associated personnel, for their personal use only.

Article 4

1.   By way of derogation from Article 2, the competent authorities may authorise the provision of financing and financial assistance, technical assistance and brokering services related to:

(a) non-lethal military equipment intended solely for humanitarian or protective use, provided that the Member State has notified the Sanctions Committee in advance in accordance with the requirements laid down in paragraph 6 of UNSCR 2428 (2018);

(b) arms and related materiel temporarily exported to South Sudan by the forces of a State which is taking action, in accordance with international law, solely and directly to facilitate the protection or evacuation of its nationals and those for whom it has consular responsibility in South Sudan, provided that the Member State notifies the Sanctions Committee in accordance with the requirements laid down in paragraph 6 of UNSCR 2428 (2018);

(c) arms and related materiel, to or in support of the African Union Regional Task Force intended solely for regional operations to counter the Lord's Resistance Army, provided that the Member State had notified the Sanctions Committee in advance in accordance with the requirements laid down in paragraph 6 of UNSCR 2428 (2018);

(d) arms and related materiel solely in support of the implementation of the terms of the peace agreement, provided that the Member State has obtained the advance approval of the Sanctions Committee in accordance with the requirements laid down in paragraph 6 of UNSCR 2428 (2018);

(e) other sales or supply of arms and related materiel, or provision of assistance or personnel, provided that the Member State has obtained the advance approval of the Sanctions Committee in accordance with the requirements laid down in paragraph 6 of UNSCR 2428 (2018).

2.   The Member State concerned shall notify the other Member States and the Commission of any authorisation granted pursuant to paragraph 1.

Article 5

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. Annex I shall include natural or legal persons, entities and bodies identified by the Committee of the UN Security Council established pursuant to paragraph 16 of UNSCR 2206 (2015) (‘Sanctions Committee’) as responsible for or complicit in, or having engaged in, directly or indirectly, actions or policies that threaten the peace, security or stability of South Sudan, in accordance with paragraphs 6, 7, 8 and 12 of UNSCR 2206 (2015) and paragraph 14 of UNSCR 2428 (2018).

2.   All funds and economic resources belonging to, owned, held or controlled by any natural or legal person, entity or body as listed in Annex II shall be frozen. Annex II shall include natural or legal persons, entities and bodies which, in accordance with Article 6(1)(b) of Decision (CFSP) 2015/740, have been identified by the Council as being responsible for obstructing the political process in South Sudan, including by acts of violence or violations of ceasefire agreements, as well as persons responsible for serious violations of human rights in South Sudan, and natural or legal persons, entities or bodies associated with them.

3.   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 Annexes I and II.

4.   Paragraphs 1, 2 and 3 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 determined by the Sanctions Committee as regards Annex I, and by the Council as regards Annex II.

Article 6

By way of derogation from Article 5(1), 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, provided that the following conditions are met:

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

(i) necessary to satisfy the basic needs of natural or legal persons, entities or bodies listed in Annex I, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges;

(ii) intended exclusively for payment of reasonable professional fees or reimbursement of incurred expenses associated with the provision of legal services; or

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

and

(b) the Member State concerned has notified the Sanctions Committee of the determination referred to in point (a) and its intention to grant an authorisation, and the Sanctions Committee has not objected to that course of action within five working days of notification.

Article 7

By way of derogation from Article 5(1), 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, provided that all of the following conditions are met:

(a) the competent authority concerned has determined that the funds or economic resources are necessary for extraordinary expenses;

(b) the Member State concerned has notified the Sanctions Committee of that determination and the Sanctions Committee has approved that determination.

Article 8

1.   By way of derogation from Article 5(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 II, 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 or 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; or

(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 two weeks prior to the authorisation.

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

Article 9

By way of derogation from Article 5(1), the competent authorities may authorise the release of certain frozen funds or economic resources, provided that all of 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 of adoption of UNSCR 2206 (2015), 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 I or II;

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

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

Article 10

1.   By way of derogation from Article 5(2), the competent authorities may authorise the release of certain frozen funds or economic resources, provided that all of 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 5(2) was listed in Annex II, or of a judicial or administrative decision rendered in an Member State, 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 or II;

(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.

Article 11

By way of derogation from Article 5(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 had been designated by the UN Security Council or the Sanctions Committee, 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 all of the following:

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

(b) that the payment is not in breach of Article 5(3);

(c) that the Sanctions Committee has been notified by the relevant Member State of the intention to grant an authorisation 10 working days in advance.

Article 12

1.   By way of derogation from Article 5(2) and provided that a payment by a natural or legal person, entity or body listed in Annex II 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 II, 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 all of the following:

(a) that the funds or economic resources are to be used for a payment by a natural or legal person, entity or body listed in Annex II;

(b) that the payment is not in breach of Article 5(3).

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

Article 13

1.   Articles 5(3) 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 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.   Provided that any such interest, other earnings and payments are frozen in accordance with Article 5(1) and (2), Article 5(3) shall not apply to the addition to frozen accounts of any of the following:

(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 5 has been included in Annex I or II.

3.   With respect to natural or legal persons, entities or bodies listed in Annex II, Article 5(3) shall not apply to the addition to frozen accounts of payments due under judicial, administrative or arbitral decisions rendered in an Member State or enforceable in the Member State concerned, provided that any such payments are frozen in accordance with Article 5(2).

Article 14

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 such information which would facilitate compliance with this Regulation, such as information on accounts and amounts frozen in accordance with Article 5, to the competent authority of the Member State where they are resident or located, and shall transmit such information, directly or through the Member State, to the Commission; and

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

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

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 15

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 and Article 5(1), (2), and (3).

Article 16

1.   The freezing of funds and economic resources or the refusal to make funds or economic resources available, carried out in good faith and 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 17

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, in particular a claim for extension or payment of a bond, guarantee or indemnity, in particular 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 Annex I or II;

(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 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 18

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 5 and authorisations granted under Article 3 and Articles 6 to 12;

(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 19

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

Article 20

1.   Where the UN Security Council or the Sanctions Committee lists a natural or legal person, entity or body and has provided a statement of reasons for the designation, the Council shall include that natural or legal person, entity or body in Annex I. The Council shall communicate its decision and the statement of reasons 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 present observations.

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

3.   Where the UN decides to de-list a person, entity or body, or to amend the identifying data of a listed person, entity or body, the Council shall amend Annex I accordingly.

Article 21

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

Article 22

1.   Where the Council decides to subject a natural or legal person, entity or body to the measures referred to in Article 5(2), 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 23

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

2.   Annex II shall include, where available, information necessary to identify the natural or legal persons, entities or bodies concerned. With regard to natural persons, such information may include names including aliases, date and place of birth, nationality, passport and ID 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.

Article 24

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.

2.   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 thereof.

Article 25

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

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 III.

Article 26

This Regulation shall apply:

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

(b) on board of 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, 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 27

Regulation (EU) No 748/2014 is hereby repealed.

Article 28

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 (1)

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Annex II - List of natural and legal persons, entities and bodies referred to in Article 5(2)

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

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Initial version

Amended by

Corrected by