Guidelines on implementation and evaluation of restrictive measures (sanctions) in the framework of the EU Common foreign and Security Policy - Hoofdinhoud

COUNCIL OF Brussels, 25 February 2005

THE EUROPEAN UNION

6749/05

PESC 159 FIN 80

"I/A" ITEM NOTE

From : General Secretariat of the Council

To : Coreper / Council

No. prev. doc. : 15579/03 PESC 757 FIN 568

Subject : Guidelines on implementation and evaluation of restrictive measures (sanctions) in the framework of the EU Common foreign and Security Policy

• 1. 

  On 8 December 2003 the Council approved guidelines on the implementation and evaluation

  of restrictive measures (sanctions) in the framework of the EU Common foreign and Security Policy.

• 2. 

  On 22 March 2005 the Presidency will organise a Seminar in New York on Restrictive

  measures (sanctions) decided in the framework of the United Nations and their implementation by the European Union. With a view to this seminar, a technical up-date of the EU sanctions guidelines based on further developments of EU practice is necessary.

• 3. 

  On 28 February 2005 the Foreign Relations Counsellors Working Party (RELEX) agreed on

  the text in annex. In addition, RELEX identified the following issues which need to be addressed to complement, supplement or better define provisions in this document:

DGE Coord EN

• a) 

  Appropriate Council bodies should further examine, in the light of experience acquired, the

  definitions given in this paper and elaborate as necessary other sanctions related definitions,

  such as the term ‘paramilitary’ 1 ; b) Appropriate Council bodies should consider further the issue of a standard list of identifiers

  for targeted individuals and entities, including transcription of non-EU alphabets;

• c) 

  In the case of EU restrictive financial measures against persons, groups and entities involved

  in terrorist acts – measures which fall under UNSCR 1373 and therefore do not directly transpose UN lists - , specific criteria and procedures were elaborated in CP 2001/931. Application of measures of this kind to individuals and groups other than those involved in terrorist acts is until now untested territory, although the possibility was raised in the framework of “further measures” against individuals who assist ICTY indictees (as foreseen in the GAERC conclusions of 14 April 2003). It raises various questions, in particular regarding the justification to be provided for such measures. Further work should therefore be done to explore the feasibility of measures of this kind;

• d) 

  The Relex/Sanctions formation should continue exchange of information and experience

  between Member States on implementation issues, notably with regard to freezing of economic resources and the ban on providing financial assistance in the context of arms embargoes;

• e) 

  Appropriate Council bodies to examine to what extent the expiration or repeal of restrictive

  measures continues to have an impact on e.g. contracts whose performance was prohibited by the measures;

• f) 

  Further reflection will need to be given on the impact of EU restrictions on admission (visa

  and travel bans) within the Schengen framework;

• g) 

  Developments regarding legal safeguards for individuals or entities affected by targeted

  sanctions will need to be closely followed.

1 Definitions of such terms as ‘import’, ‘export’, ‘supply’, ‘transit’, in the context of sanctions

may need to be addressed.

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• 4. 

  Taking account of the foregoing, Coreper is invited to recommend to the Council to

  − take note of the updated version of the guidelines on implementation and evaluation of

  restrictive measures (sanctions) in the framework of the EU Common foreign and Security Policy;

  − mandate the Foreign Relations Counsellors working Party to proceed to a more

  substantial revision of the guidelines, after the Presidency seminar on Restrictive measures (Sanctions) in New York.

____________

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ANNEX

GUIDELINES ON IMPLEMENTATION AND EVALUATION OF

RESTRICTIVE MEASURES (SANCTIONS) IN THE FRAMEWORK OF THE EU COMMON FOREIGN AND SECURITY POLICY

I. Introduction ............................................................................................................ 2 II. Basic principles ....................................................................................................... 3 A. Objectives 3 B. Legal issues 3 C. Targeted measures 4 D. Lists of targeted persons and entities 5 E. Exemptions 6 F. Expiration or review of restrictive measures 6 G. Implementation of UN Security Council Resolutions 8 H. Competences 11 I. Jurisdiction 12 III. Standard wording for legal instruments .............................................................. 13 A. Definitions 13 B. Arms embargoes 15 C. Restrictions on specific imports or exports 20 D. Restrictions on admission (visa or travel ban) 20 E. Financial restrictions 22 F. Jurisdiction 25 G. Infringements 25 IV. Monitoring and evaluation of restrictive measures............................................. 27 ANNEX - List of equipment which might be used for internal repression.................. 29

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I. Introduction

• 1. 

  The European Union's extensive experience in designing, implementing, enforcing and monitoring restrictive measures (sanctions) in the framework of the CFSP 1 has shown that

  there is a need to improve a number of aspects so as to allow expeditious and effective action. To that end, it is desirable to standardise implementation and to strengthen methods of implementation. These guidelines, adopted by the Council on 8 December 2003 (doc. 15579/03) address a number of general issues and present standard wording and common definitions for use in the legal instruments used to implement restrictive measures. However, they do not address the political process leading to the decision to impose or repeal

  such restrictive measures 2 .

• 2. 

  In the case of implementation of UN restrictive measures, the EU legal instruments will need

  to adhere strictly to the relevant Security Council Resolutions. However, it is understood that the EU may decide to apply measures that are more restrictive.

1 See Commission website, list of restrictive measures in force

  [http://europa.eu.int/comm/external_relations/cfsp/sanctions/measures.htm]

2 As regards policy aspects, it is recalled that the Council on 14 July 2004 adopted basic

principles on the use of restrictive measures (sanctions) (doc. 10198/1/04).

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II. Basic principles

A. Objectives

• 3. 

  Within the framework of the Common Foreign and Security Policy, the Council may decide

  to impose restrictive measures against third countries, entities or individuals. They must pursue CFSP objectives, as set out in Article 11 of the Treaty on European Union.

• 4. 

  In general terms, restrictive measures are imposed by the EU to bring about a change in

  policy or activity by the target country, part of country, government, entities or individuals. Accordingly, the EU will repeal/adapt the restrictive measures as a function of positive developments in light of its objectives. Where possible and consistent with the European Union's overall strategy towards the third country concerned, the legal instruments imposing restrictive measures may refer to incentives to encourage the required change in policy or activity. It will be important to ensure that such incentives do not reward non-compliance.

• 5. 

  The objective of each measure should be clearly stated and consistent with the Union's

  overall strategy in the area concerned. Both the overall strategy and the specific objective should be recalled in the introductory paragraphs of the Council legal instrument through which the measure is imposed. The restrictive measures do not have an economic motivation.

• 6. 

  The legal instruments will be subject to regular review in order to assess the efficiency of the

  adopted restrictive measures with regard to the objectives stated. The review will be conducted by the relevant Council working parties and committees, on the basis of EU Heads of Mission reports where relevant.

B. Legal issues

• 7. 

  The introduction and implementation of restrictive measures must always be in accordance

  with international law and the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law.

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• 8. 

  When imposing restrictive measures, the legal context of the measures should be set out. In

  addition to relevant provisions of the Treaty on European Union and Treaty establishing the European Community, this may include references to any relevant UN Security Council resolution, or other applicable provisions of international law.

• 9. 

  The restrictive measures should respect the international obligations of the European

  Community and its Member States, including in particular the WTO Agreements. The General Agreement on Tariffs and Trade (GATT) and on Trade in Services (GATS) apply when restrictive measures affect trade in goods or services with third countries. Article XXI of GATT allows for import and export restrictions which are either applicable to arms and military equipment, or imposed in pursuance of obligations under the United Nations Charter for the maintenance of international peace and security. Article XIV bis of GATS provides for a similar exception. Measures restricting trade which do not fall under these categories, have to meet the conditions laid down in Article XX of GATT and Article XIV of GATS, respectively, and, in some cases, could be incompatible with WTO rules.

• 10. 

  If EU measures are in conflict with the international obligations of the EC or its Member States,

  a common approach for dealing with such conflicts may have to be developed.

• 11. 

  When deciding on restrictive measures it is important to consider which measure or package

  of measures is most appropriate. It is a general principle of law that measures must be proportionate in view of their objective.

C. Targeted measures

• 12. 

  It is desirable that the measures taken target as closely as possible those responsible for the

  policies or actions that have prompted the EU decision to impose restrictive measures also to take account of the humanitarian consequences they could entail. As a result, the measures are "targeted measures” in nearly all cases, i.e. restrictive measures that do not affect all transactions of a particular category with a third country, but rather the portion of such transactions which involves a well-defined category of persons and entities. Targeted measures increase efficiency of the measures and minimise their human consequences. Examples include financial restrictions, freezing of funds and restrictions on admission.

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• 13. 

  The measures used against a particular regime will need to vary depending on the objectives

  of the restrictive measures and likely effectiveness of particular measures. They include, inter alia, arms embargoes, embargoes on equipment that might be used for internal repression, other export restrictions, import restrictions, a ban on flights and restrictions on admission.

• 14. 

  In designing and implementing its legal instruments, the EU can draw on its own experience

  in designing and implementing restrictive measures regimes and on the work carried forward in other fora, e.g. the Interlaken, Bonn – Berlin and Stockholm processes, as well as the experiences of the UN in this field.

D. Lists of targeted persons and entities

• 15. 

  EU decisions and procedures must respect human rights and fundamental freedoms; this

  implies, in particular, that proper attention is given to the protection and observance of the due process rights of the persons to be listed. This is important also because targeted restrictive

  measures are taken through legal instruments that may be subject to judicial review 3 .

• 16. 

  Measures taken should target those responsible for the policies or actions that have prompted

  the EU's decision to impose restrictive measures. Deciding that a person or entity should be subject to restrictive measures requires clear criteria, tailored to each specific case, for determining which persons and entities may be listed, which should also be applied for the purpose of removal from the list. These clear criteria will be set out in the CFSP legal instrument. This applies in particular with regard to financial measures, both in the case of listing of persons in the framework of measures against one or more third states, as well as in cases where measures target individuals and entities in their own right.

• 17. 

  Identifying information is crucial to ensure that targeted restrictive measures do not impact on

  non-targeted persons and entities, in particular to assist the private sector to implement such measures. This should include as far as possible dates of birth, place of birth, pseudonyms, passport details, addresses of residence (and of incorporation in case of legal entities) and,

6749/05 IR/phs 5

ANNEX DGE Coord EN

where appropriate, names of adult family members of the person to be listed. Additional identifiers may be added at a later stage. The EU should aim in all cases to ensure that the identifying information provided at the time of the inclusion of a person on a list should be sufficiently precise to allow for an unambiguous identification of the targeted person. Identifying information for individuals and entities should be standardised as far as possible.

E. Exemptions

• 18. 

  It is important that the legal instruments on financial restrictions, restrictions on admission

  and other restrictive measures make provision for appropriate exemptions to take account of humanitarian needs of targeted persons and, where applicable, international obligations, including as host nations of international organisations or the OSCE, with regard to the various restrictive measures taken.

• 19. 

  The competent authorities should grant exemptions on a case by case basis, which will allow

  them to assess all interests concerned and to impose conditions to ensure that the exemptions do not frustrate or circumvent the objective of the restrictive measure. The exemptions should be granted on the basis of the relevant legislative instruments. If there are grounds to grant an exemption from one restrictive measure (e.g. financial restrictions) this does not by default justify granting an exemption from another measure (e.g. restrictions on admission) which affects the person or entity concerned (cf. section III: A, D and E).

F. Expiration or review of restrictive measures

• 20. 

  Taking the specific objective of each measure and all other relevant considerations into

  account, the Council should keep the situation under review and schedule a specific review whenever the political context has changed.

• 21. 

  Where it is considered appropriate, specific criteria that have to be met for repeal of the

  restrictive measures can be set out in the legal instrument, but normally proper definition of the specific objective of the measure will be sufficient.

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• 22. 

  When the criteria or specific objectives of the measure have not been met the restrictive

  measures should continue. The CFSP legal instrument should therefore either have an expiration date or a review clause, as decided by the Council, so as to ensure that the need for

renewal of restrictive measures is discussed within an appropriate period of time 4 . The

expiration or review date could be decided taking into account relevant facts and considerations (e.g. dates of future elections or peace negotiations which might bring about a change in the political context).

• 23. 

  If the CFSP legal instrument sets out an expiration date for restrictive measures the Council

  should develop an understanding about their renewal. To be effective restrictive measures should be lifted according to their objectives, not according to time limits. The time limit therefore would be an occasion to revisit the restrictive measures regime and to assess whether the objectives have been met.

• 24. 

  In cases in which the CFSP legal instrument would contain an expiration date, the need for an

  expiration date in Regulations implementing the CFSP legal instrument is nonetheless not self-evident;

  • - 

    since the Regulations implement the CFSP act, they have to be repealed, if the CFSP legal instrument ceases to be applicable 5 . In such a situation, the Regulations can be repealed

with retroactive effect, but it is desirable that this period is kept as short as possible.

• - 

  if subsequent CFSP legal instrument renews the measures, amending the expiration date of

  the Regulation or adopting a new one containing the same legal provisions constitutes a mere administrative burden which should be avoided. Especially where last minute decisions on renewal are made, there may be a period during which the measures are not

  applicable pending amendment or adoption of a Regulation 6 .

It is, therefore, preferable to have the Regulation continue in force, until it is repealed.

4 At present, most EU sanctions texts imposing visa bans and assets freezes have expiration

dates, whereas arms embargoes tend to have review clauses.

5 See Articles 60 and 301 of the EC Treaty

6 The implementation of UN restrictive measures in relation to Liberia constitutes an example.

See Regulations (EC) No 1030/2003 i (OJ L 150, 18.6.2003, p. 1) and (EC) No 1318/2002 (OJ L 194, 23.7.2002, p. 1).

ANNEX DGE Coord EN

• 25. 

  Standard wording for an expiration clause could therefore be:

  “This Common Position shall apply for a … period. It shall be kept under constant review. It shall be renewed, or amended as appropriate, if the Council deems that its objectives have not been met.”

• 26. 

  Standard wording for a review clause could read:

  “This Common position shall be reviewed … after its adoption and every … thereafter. It shall be repealed if the Council deems that its objectives have been met.”

G. Implementation of UN Security Council Resolutions

New measures

• 27. 

  The UN Charter grants the Security Council powers to decide in a manner binding for all UN members 7 which restrictive measures have to be taken in order to maintain or restore

  international peace and security, if there is a threat to the peace, a breach of the peace, or an act of aggression. It is important that the EU implement such UN restrictive measures as quickly as possible. Speed is particularly important in the case of asset freezes where funds can move quickly. In such cases, each Member State could consider the possibility of interim national measures with regard to financial measures (see Art. 60.2 TEC). The EU should aim to have the necessary implementing legislation in place without delay and within 30 days of the adoption of the UNSC Resolution at the latest. In cases in which the Commission has received a mandate to update lists of targeted persons or entities annexed to Council Regulations, it should aim to adopt the respective Commission Regulations within three working days after the adoption of the updated UN lists.

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• 28. 

  EU members of the UN Security Council will seek to ensure that, to the greatest extent

  possible, and without prejudice to their responsibilities under the UN Charter, EU concerns and implementation needs are taken into consideration when negotiating the UNSCR in question, in accordance with Article 19 TEU.

• 29. 

  Legal security and transparency considerations militate against general legal instruments

  creating rights and obligations for the private sector by mere reference to any other instrument, which does not have direct effect in the EU legal order. The current legislative procedure requires the adoption of a CFSP legal instrument and an implementing Council Regulation based on the EC Treaty, based on a Commission proposal.

• 30. 

  The Commission has in several cases presented a proposal for a Council Regulation

  immediately after adoption of the Security Council Resolution, but before adoption of the CFSP legal instrument. This approach enables the Council to adopt the CFSP legal instrument and the Regulation at the same time, but it should be noted that it requires that the Commission receives all relevant information on the draft Resolution prior to adoption of the Security Council Resolution so as to give it sufficient time to assess to what extent and subject to which terms and conditions the measures should be implemented by means of a Council Regulation. Similar arguments will apply to the drafting of the CFSP legal instruments.

• 31. 

  Standard wording for legislative texts will be conducive to more rapid implementation of UN

  restrictive measures. When the EU implements UN restrictive measures the use of standard wording and common definitions must be adapted to the UNSC Resolution.

• 32. 

  In view of the binding nature of UN Security Council Resolutions, the use of an expiration

  date is not appropriate when restrictive measures are imposed in application of a Security Council Resolution.

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Renewal of temporary measures

• 33. 

  A specific situation exists, when the Security Council decides on measures which expire by a

  particular date. In such a situation, correct implementation of the UN measures requires immediate legislative action, if the measures are renewed just before the expiration date. In order to prevent expiration of the restrictive measures in cases where renewal is called for, the Council should not copy the expiration date in the implementing Regulation.

Expiration or repeal of measures

• 34. 

  It is equally important to repeal restrictive measures swiftly in response to UN decisions on

  this point. Where the EU applies restrictive measures in implementation of Security Council Resolutions only, it is not proper for the implementing legal instruments to remain in place when the Security Council has decided the measures should be lifted. Where necessary, the legislative instruments can be repealed with retroactive effect; it is desirable that this period is kept as short as possible.

Exemptions

• 35. 

  Chapter VII UNSC Resolutions are mandatory under international law. In the case of EU

  implementation of restrictive measures decided by the Security Council through a resolution, it will therefore only be possible to include exemptions if they are in line with the Resolution. In this respect, paragraph 28 is relevant, including with regard to humanitarian exemptions for the purpose of satisfying basic needs of targeted persons.

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H. Competences

• 36. 

  The purpose of the CFSP legal instrument is to state which restrictive measures are

  considered necessary to meet its objectives and provide the basis for an action by the Community to interrupt or to reduce economic or financial relations with the third country in question. The European Community can adopt legislative implementation measures through a Regulation based on Articles 60 and 301 of the EC Treaty. In some cases, the Regulation

  has been based on Articles 60, 301 and 308 8 . Where the Community has no competence it is

up to each of the Member States to adopt the necessary legislation or implementing measures.

• 37. 

  Where restrictive measures are being considered, a case by case assessment needs to be made

  of Community competence, taking the EC Treaty's attribution of powers to the Community into account. The current practice is that the Council indicates in the CFSP instrument that "action by the Community is needed to implement certain measures" to enable the Commission to propose a Regulation implementing the measures falling within the remit of the Community. Where precision is needed to ensure that all measures are implemented in time, the CFSP instrument should indicate expressly how each measure or part of measure will be implemented.

• 38. 

  Where the Community has the necessary competences to adopt a Regulation implementing

  the restrictive measures, it provides that Member States must lay down rules on sanctions applicable to infringements of the provisions of the Regulation and take all measures necessary to ensure that they are implemented.

8 Council Regulation (EC) 1763/2004 i of 11 October 2004 imposing certain restrictive measures

in support of effective implementation of the mandate of the International Criminal Tribunal for the former Yugoslavia (ICTY) (OJ L 315, 14.10.2004, p. 14). Other examples are Council Regulation (EC) No 2580/2001 i, of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ L 344, 28.12.2001, p. 70) and Council Regulation (EC) No 881/2002 i, of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden , the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 i prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ L 139, 29.5.2002, p. 9).

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I. Jurisdiction

• 39. 

  The EU has condemned the extra-territorial application of third country’s legislation imposing

restrictive measures which purports to regulate the activities of natural and legal persons

under the jurisdiction of the Member States of the European Union, as being in violation of

international law 9 . Accordingly, it will refrain from adopting legislative instruments having

extra-territorial application in breach of international law.

9 Joint Action of 22 November 1996 concerning measures protecting against the effects of the

extra-territorial application of legislation adopted by a third country, and actions based thereon

or resulting therefrom (OJ L 309, 29.11.1996, p. 7).

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III. Standard wording for legal instruments

The standard wording set out in this Chapter should be used for all relevant legal instruments concerning EU restrictive measures, except if it is necessary to use different wording in order to implement a UN Security Council Resolution correctly.

The standard provisions on exemptions should be adapted, where appropriate.

A. Definitions

For the purposes of EU restrictive measures, the following definitions will apply. Further definitions will be worked out as necessary.

• 40. 

  The term "technical assistance" shall mean 10 :

  "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; technical assistance includes verbal forms of assistance".

• 41. 

  Over the years freezing of funds has been ordered, and bans on making funds available to listed persons and entities have been imposed, based on the following definitions 11 :

"funds" means financial assets and benefits of every kind, including but not limited to:

(a) cash, cheques, claims on money, drafts, money orders and other payment instruments; (b) deposits with financial institutions or other entities, balances on accounts, debts and debt obligations;

10 Joint Action 2000/401/CFSP, (OJ L 159, 30.6.2000, p. 216).

11 See e.g. Regulations (EC) No 2488/2000 i maintaining the freeze of funds in relation to

Mr Milosevic and those persons associated with him (OJ L 287, 14.11.2000, p. 19) and (EC) No 1081/2000 prohibiting the sale, supply and export to Burma/Myanmar of equipment which might be used for internal repression or terrorism, and freezing the funds of certain persons

related to important governmental functions in that country (OJ L 122, 24.5.2000, p. 29).

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(c) publicly- and privately-traded securities and debt instruments, including stocks and shares, certificates representing securities, bonds, notes, warrants, debentures and derivatives contracts; (d) interest, dividends or other income on or value accruing from or generated by assets; (e) credit, right of set-off, guarantees, performance bonds or other financial commitments; (f) letters of credit, bills of lading, bills of sale; (g) documents evidencing an interest in funds or financial resources; (h) any other instrument of export-financing.

"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 use of the funds, including portfolio management.

• 42. 

  More recently, the freezing of economic resources has become an issue. In this regard, the following definitions have been used 12 by the Council and could continue to be used in EU

  legal instruments, as appropriate.

  "economic resources" means assets of every kind, whether tangible or intangible, movable or immovable, which are not funds but can be used to obtain funds, goods or services.

"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."

Notably as a result of the large definition of economic resources, which covers all property other than funds, enforcement practice concerning freezing of economic resources may differ among Member States. The EU should work towards a common understanding on these issues.

12 See Regulations (EC) No 881/2002 i imposing certain specific restrictive measures directed

against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban (OJ L 139, 29.5.2002, p. 9) and (EC) No 1210/2003 concerning certain specific restrictions on economic and financial relations with Iraq and repealing Regulation (EC)

No 2465/96 (OJ L 169, 8.7.2003, p. 6).

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• 43. 

  The term "dual use good" shall mean:

  "items, including software and technology, which can be used for both civil and military purposes, and shall include all goods which can be used for both non-explosive uses, and assisting in any way in the manufacture of nuclear weapons or other nuclear explosive

  devices" 13

B. Arms embargoes

Equipment covered by the embargo

• 44. 

  Currently, CFSP legal instruments imposing arms embargoes refer to different lists of

equipment. Therefore, different regimes apply to different countries. There is a need for a

uniform EU regime when imposing an arms embargo. The EU Code of Conduct on Arms

Exports 14 , adopted on 8 June 1998, defines the criteria Member States apply for their exports

control policy concerning arms. For this purpose a common list of military equipment was

agreed in 2000 15 . Unless otherwise specified, arms embargoes should be interpreted as

covering at least all goods and technology on the EU Common List of Military Equipment.

• 45. 

  The common list of military equipment does not include items which can be used for both

  civil and military purposes. Exports of such dual-use items are controlled in accordance with

  Council Regulation (EC) No 1334/2000 i 16 . This Regulation foresees that, in deciding whether

  or not to grant an export authorisation, the Member States shall take into account, inter alia, their obligations under sanctions imposed by a legal instrument adopted by the Council or by a decision of the OSCE or by a binding resolution of the Security Council of the United Nations.

13 Art 2.a of Council Regulation 1334/2000 i of 22 June 2000 (OJ L159 of 30.6.2000).

14 Document 8675/2/98.

15 List attached to Council Declaration of 13 June 2000, issued on the occasion of the adoption

of the common list of military equipment covered by the European Union code of conduct on arms export, OJ C 191, 8 July 2000. An updated version of the list has been published in OJ C

314, 23.12.2003, p.1.

16 OJ L 159, 30 June 2000, p. 1. Last amended by Council Regulation (EC) No 1504/2004 i of 19

July 2004 (OJ L 281, 31.8.2004, p. 1).

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By its very nature (dual-use) a number of the goods listed have entirely legitimate applications e.g. cryptographic products used in banking, equipment that can be used in hospitals, factories, universities, offshore oil fields. An outright ban might thus have implications that go well beyond the initial objective and be wholly inappropriate. In most cases, a ban on exports of dual-use items, including when they would be used for civil purposes, is, therefore, likely to be disproportionate unless applied with qualifications and scope for appropriate exemptions (evidence of legitimate purpose). If an embargo on such items is nevertheless considered appropriate, the legal instrument should refer to the common list of dual-use items attached to Regulation (EC) No 1334/2000 i.

• 46. 

  Standard wording for a provision imposing an arms embargo could read 17 :

  “The sale, supply, transfer or export of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment and spare parts for the aforementioned, to (country) by nationals of Member States or from the territories of Member States or using their flag vessels or aircraft, shall be prohibited whether originating or not in their territories.”

Technical assistance and other services relating to military activities

• 47. 

  When imposing an autonomous EU embargo on arms, including weapons and ammunition,

  military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, a prohibition on providing technical assistance relating to such equipment should normally also be provided. In addition, a ban on financing of or providing financial assistance for arms exports could strengthen the arms embargo.

17 Based on Council Common Position 2002/960/CFSP, of 10 December, concerning restrictive

measures against Somalia (OJ L 334, 11.12.2002, p. 1).

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• 48. 

  Wording of a standard article could be as follows:

  “It shall be prohibited:

  (a) to grant, sell, supply, or transfer technical assistance, brokering services 18 and other

  services related to military activities and 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 for the aforementioned, directly or indirectly to any natural or legal person, entity or body in, or for use in (country);

  (b) to provide financing or financial assistance related to military activities, including in particular grants, loans and export credit insurance, for any sale, supply, transfer or export of arms and related materiel, or for any grant, sale, supply, or transfer of related technical assistance, brokering services and other services directly or indirectly to any person, entity or body in, or for use in (country).

  (c) to participate, knowingly and intentionally, in activities the object or effect of which is, directly or indirectly, to circumvent the prohibitions referred to at points (a) or (b)."

Exemptions

• 49. 

  It may be appropriate to allow exemptions to the ban on exports of arms and related

  equipment for humanitarian purposes as, in post-conflict areas, certain types of controlled equipment can make important contributions to the safety of the civilian population and to economic reconstruction. These exemptions should normally be limited to non-lethal military equipment and to exports of protective clothing for personal use. They may include de-mining equipment and materiel intended for institution building, as appropriate.

18 Council Common Position 2003/468/CFSP of 23 June 2003 on the control of arms brokering

(OJ L 156 of 25.6.2003, p. 79).

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• 50. 

  It is desirable that exemptions on exports of non-lethal military equipment, like all others, be

  dealt with on a case-by-case basis, taking full account of the criteria set out in the Code of Conduct and other EU texts and legal instruments. Member States will require adequate safeguards against misuse of such exports and, where appropriate, provisions for repatriation of the equipment.

• 51. 

  Standard wording for a provision on exemptions to bans on exports of arms and related

  equipment could read:

  "1. Article … shall not apply to:

• a) 

  the sale, supply, transfer or export of non-lethal military equipment intended solely

  for humanitarian or protective use, or for institution building programmes of the UN, the EU and the Community, or for EU and UN crisis management operations;

• b) 

  the sale, supply, transfer or export of demining equipment and materiel for use in

  demining operations;

• c) 

  the provision of financing and financial assistance related to such equipment or to

  such programmes and operations,

  • d) 

    the provision of technical assistance related to such equipment or to such

    programmes and operations,

on condition that such exports have been approved in advance by (competent authority)."

• 52. 

  In cases where. there is a UN, EU or Community institution building programme or an

  EU or UN crisis management operation which would also require the export of lethal equipment, the above provision would need to be complemented with the addition of “and materiel intended for…” in indent a).

ANNEX DGE Coord EN

As appropriate, institution building programmes and crisis management operations conducted by regional and sub-regional organisations may be added to the exemption in

indent a) 19 .

In the case of UN institution building programmes, the sale, supply, transfer or export of such materiel could be subject to approval by the relevant UN Sanctions Committee.

• 53. 

  Standard wording for a provision on protective clothing could read as follows:

  "Article … shall not apply to protective clothing, including flak jackets and military helmets, temporarily exported to (country) by United Nations personnel, personnel of the EU, the Community or its Member States, representatives of the media and humanitarian and development workers and associated personnel for their personal use only."

19 Cf. Common Position 2004/510/CFSP of 10 June 2004 concerning the imposition of an arms

embargo on Sudan (OJ L209 of 11.6.2004 p. 28) and Common Position 2004/852/CFSP of 13

December 2004 concerning restrictive measures against Cote d’Ivoire (OJ L368 of

15.12.2004 p. 50).

ANNEX DGE Coord EN

C. Restrictions on specific imports or exports

• 54. 

  If a policy of internal repression is at the basis of the imposition of restrictive measures, a ban

  on exports of certain equipment is appropriate. EU legal instruments could refer to or use an agreed list when deciding an embargo on exports of items that could be used for internal repression. A list is annexed which, if the Council so decides, defines the scope of the specific

export restriction for equipment which might be used for internal repression 20 . It should be

used for this purpose, until it has been reviewed as appropriate.

• 55. 

  Other lists such as a list of petroleum and petroleum products have been developed within the EU framework 21 . Future lists defining the scope of specific export or import control regimes

  may constitute a useful reference for specific export or import bans, if it is considered necessary to ban all trade of the specific, controlled category in relation to a particular country, in order to achieve the objectives of the CFSP.

• 56. 

  The exemptions from such measures should be sufficient to allow humanitarian action where

  appropriate and to take full account of the objective of the restrictive measures.

D. Restrictions on admission (visa or travel ban)

• 57. 

  Several CFSP Common Positions foresee a ban on admission of specific nationals of third

  countries that are listed in an annex to the legal instrument.

• 58. 

  Regulation (EC) No 539/2001 i listing the third countries whose nationals must be in

  possession of visas when crossing the external borders and those whose nationals are exempt

  from that requirement 22 , provides the basis for controls on admission of foreigners. Where a

  listed country's nationals need visas to enter the EU, a ban on admission can be immediately applied on the basis of this Regulation. Where no visa requirement exists under Regulation (EC) No 539/2001 i, restrictions on admission may require national action.

20 See Annex I to Regulation (EC) No 1081/2000 i (OJ L 122, 24.5.2000, p. 29) and Annex II to

Regulation (EC) No 310/2002 i (OJ L 50, 21.2.2002, p. 4).

21 See Annex I to Regulation (EC) No 1705/1998 i (OJ L 215, 1.8.1998, p. 1)

6749/05 IR/phs 20

ANNEX DGE Coord EN

• 59. 

  Standard wording 23 for an article regarding a visa/travel ban and exemptions therefrom could

  read as follows:

• 1. 

  "Member States shall take the necessary measures to prevent the entry into, or transit

  through, their territories of the persons listed in the Annex, (indication of criteria/categories, if not already specified in the text);

  • 2. 

    Paragraph 1 will not oblige a Member State to refuse its own nationals entry into its

    territory.

• 3. 

  Paragraph 1 shall be without prejudice to the cases where a Member State is bound by

  an obligation of international law, namely: (i) as a host country of an international intergovernmental organisation; (ii) as a host country to an international conference convened by, or under the auspices of, the United Nations; or

(iii) under a multilateral agreement conferring privileges and immunities.

The Council shall be duly informed in each of these cases.

• 4. 

  Paragraph 3 shall be considered as applying also in cases where a Member State is

host country of the Organisation for Security and Cooperation in Europe (OSCE).

• 5. 

  Member States may grant exemptions from the measures imposed in paragraph 1

  where travel is justified on the grounds of urgent humanitarian need, or on grounds of attending intergovernmental meetings, including those promoted by the European Union, where a political dialogue is conducted that directly promotes democracy, human rights and the rule of law in (country).

• 6. 

  A Member State wishing to grant exemptions referred to in paragraph 5 shall notify the

  Council in writing. The exemption will be deemed to be granted unless one or more of the Council Members raises an objection in writing within two working days of

23 As first agreed by the Council in Common Position 2003/115/CFSP of 18 February 2003

(restrictive measures against Zimbabwe)

ANNEX DGE Coord EN

receiving notification of the proposed exemption. In the event that one or more of the Council members raises an objection, the Council, acting by a qualified majority, may decide to grant the proposed exemption.

• 7. 

  In cases where pursuant to paragraphs 3, 4, 5 and 6, a Member State authorizes the

  entry into, or transit through, its territory of persons listed in the Annex, the authorization shall be limited to the purpose for which it is given and to the persons concerned thereby."

E. Financial restrictions

• 60. 

  Standard wording for freezing of assets through legal text based on articles 60 and 301 of the TEC could read 24 :

  “1. All funds and economic resources belonging to individual members of the Government of (country) and to any natural or legal persons, entities or bodies associated with them as listed in Annex (X), 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 (X).

24 Notably with the purpose of minimising evasion from the sanctions, the Council may decide,

on a case by case basis, to include on the list natural or legal persons, entities or bodies associated with individuals listed in Annex (X).

ANNEX DGE Coord EN

Exemptions

• 61. 

  Standard wording 25 for an article containing exemptions from the freezing of funds and the

  prohibition of making funds or economic resources available could be the following:

  "1. The competent authority may authorise the release of certain frozen funds or economic resources or the making available of certain frozen funds or economic resources, under such conditions as it deems appropriate, after having determined that the funds or economic resources concerned are:

  (a) necessary for basic expenses, 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,

(c) intended exclusively for payment of fees or service charges for routine holding or

maintenance of frozen funds or economic resources,

(d) necessary for extraordinary expenses, provided that (competent authority) has

notified the grounds on which it considers that a specific authorisation should be granted, to (the other competent authorities and the Commission) at least two weeks prior to the authorisation."

The competent authority will inform the competent authorities of the other Member States and the Commission of any authorisation granted under this article.

• 2. 

  Article .. (the prohibition against making funds or economic resources available) shall not apply to the addition to frozen accounts of:

25 Based on Regulation (EC) No 881/2002 i imposing certain specific restrictive measures

directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban (OJ L 139, 29.5.2002, p. 9), as amended by Regulation (EC) No 561/2003 i (OJ L 82, 29.3.2003, p. 1). See also Regulation (EC) No 2580/2001 i on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ L 344, 28.12.2001, p. 7).

ANNEX DGE Coord EN

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

provided that any such interest, other earnings and payments continue to be subject to

Article .. (freezing of funds and economic resources of listed persons and entities)."

• 62. 

  As regards the scope of the addition to the frozen account, this language will need to be

  adapted as necessary to reflect the situation of persons or entities targeted by the EU measures.

• 63. 

  Standard wording for an article for the Council Regulation with regard to the crediting of

  frozen accounts could be the following:

  " Article ...(Reference to Article prohibiting making funds or economic resources available to listed natural or legal persons, entities or bodies) 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 listed person, entity or body, provided that any additions to such accounts will also be frozen. The financial or credit institution should inform the competent authorities about such transactions without delay."

ANNEX DGE Coord EN

F. Jurisdiction

• 64. 

  The standard clause setting out to what extent the restrictive measures should apply in

  situations where links exists with the EU as well as with other members of the international community could read as follows:

  "This Regulation shall apply:

  • - 

    within the territory of the Community, including its airspace; - on board any aircraft or any vessel under the jurisdiction of a Member State; - to any person elsewhere who is a national of a Member State; - to any legal person, entity or body which is incorporated or constituted under the law of a Member State; - to any legal person, entity or body doing business within the Community."

G. Infringements

• 65. 

  The Regulations imposing restrictive measures contain provisions regarding penalties to be

  taken in case of infringement. Standard wording for this issue could read as follows:

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

  • 2. 

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

ANNEX DGE Coord EN

• 66. 

  It is desirable that the restrictive measures are implemented as soon as possible. To that end,

  Member States shall aim at having in place the rules referred to in the paragraph above within 30 days, following their respective national procedures. The Member States could also consider adopting national rules which set sanctions for infringement of Regulations imposing restrictive measures which will apply by default.

ANNEX DGE Coord EN

IV. Monitoring and evaluation of restrictive measures

• 67. 

  The effectiveness of EU restrictive measures – and also the EU’s credibility – hinges to a

  large degree on restrictive measures being implemented and enforced promptly and without exceptions in all Member States. In order to ensure adequate follow-up to EU decisions to impose restrictive measures, a specific Council body has been set up dedicated to exchanging experience and developing best practice in the implementation and application of restrictive measures. Thus the Foreign Relations Counsellors Working Party meets regularly in its specific 'Sanctions formation' (RELEX/Sanctions), reinforced as necessary including with

  experts from capitals. The mandate of the Relex/Sanctions formation is 26 .

• Exchanging information and experiences on the implementation of specific restrictive

measures regimes imposed by the EU;

• Contributing to developing best practices among Member States in implementation of

restrictive measures;

• Collecting all information available on alleged circumvention of EU restrictive measures

and other international sanctions regimes of interest to the EU by targeted states, persons and entities;

• Exchanging information and experience, including with third states and international

organisations as appropriate, on the implementation of international sanctions regimes of interest to the EU;

• Assisting in evaluating the results and difficulties in the implementation of restrictive

measures regimes;

• Exchanging views on ways and means to ensure the efficiency of management of

restrictive measures regimes, including of their humanitarian provisions;

• Examining all relevant technical issues relating to the implementation of EU restrictive

measures. The Relex/Sanctions formation has notably identified EU best practices for effective implementation of financial restrictive measures targeting terrorist persons, groups or

entities 27

26 Mandate of RELEX/Sanctions is set out in doc. 5603/04.

6749/05 IR/phs 27

ANNEX DGE Coord EN

• 68. 

  Both the CFSP legal instruments and the EC Regulations should provide for regular

  reporting on the implementing measures and enforcement actions taken by Member States to give effect to the restrictive measures. Monitoring at EU level should enable a more consistent assessment as to whether the restrictive measures are having the impact they need to be effective. This is crucial where autonomous measures are at issue, since it provides the basis for decisions on the need for improvement of legal texts and, to some extent, for those on the usefulness of maintaining the measures.

ANNEX DGE Coord EN

Annex: list of equipment which might be used for internal repression

Equipment for internal repression envisaged by Article (X)

The list below does not comprise the articles that have been specially designed or modified for military use

• 1. 

  Helmets providing ballistic protection, anti-riot helmets, anti-riot shields and ballistic shields

  and specially designed components therefor.

• 2. 

  Specially designed fingerprint equipment.

• 3. 

  Power controlled searchlights.

• 4. 

  Construction equipment provided with ballistic protection.

• 5. 

  Hunting knives.

• 6. 

  Specially designed production equipment to make shotguns.

• 7. 

  Ammunition hand-loading equipment.

• 8. 

  Communications intercept devices.

• 9. 

  Solid-state optical detectors.

• 10. 

  Image-intensifier tubes.

• 11. 

  Telescopic weapon sights.

ANNEX DGE Coord EN

• 12. 

  Smooth-bore weapons and related ammunition, other than those specially designed for military

  use, and specially designed components therefor; except: 1. signal pistols; 2. air- and cartridge-powered guns designed as industrial tools or humane animal stunners.

• 13. 

  Simulators for training in the use of firearms and specially designed or modified components

  and accessories therefor.

• 14. 

  Bombs and grenades, other than those specially designed for military use, and specially

  designed components therefor.

• 15. 

  Body armour, other than those manufactured to military standards or specifications, and

  specially designed components therefor.

• 16. 

  All-wheel-drive utility vehicles capable of off-road use that have been manufactured or fitted

  with ballistic protection, and profiled armour for such vehicles.

• 17. 

  Water cannon and specially designed or modified components therefor.

• 18. 

  Vehicles equipped with a water cannon.

• 19. 

  Vehicles specially designed or modified to be electrified to repel borders and components

  therefor specially designed or modified for that purpose.

• 20. 

  Acoustic devices represented by the manufacturer or supplier as suitable for riot-control

  purposes, and specially designed components therefor.

• 21. 

  Leg-irons, gang-chains, shackles and electric-shock belts, specially designed for restraining

  human beings; except: - handcuffs for which the maximum overall dimension including chain does not exceed 240 mm when locked.

ANNEX DGE Coord EN

• 22. 

  Portable devices designed or modified for the purpose of riot control or self-protection by the

  administration of an incapacitating substance (such as tear gas or pepper sprays), and specially designed components therefor.

• 23. 

  Portable devices designed or modified for the purpose of riot control or self-protection by the

  administration of an electric shock (including electric-shocks batons, electric shock shields, stun

  guns and electric shock dart guns (tasers)) and components therefor specially designed or

  modified for that purpose.

• 24. 

  Electronic equipment capable of detecting concealed explosives and specially designed

  components therefor; except: - TV or X-ray inspection equipment.

• 25. 

  Electronic jamming equipment specially designed to prevent the detonation by radio remote

  control of improvised devices and specially designed components therefor.

• 26. 

  Equipment and devices specially designed to initiate explosions by electrical or non-electrical

  means, including firing sets, detonators, igniters, boosters and detonating cord, and specially designed components therefor; except: - those specially designed for a specific commercial use consisting of the actuation or operation by explosive means of other equipment or devices the function of which is not the creation of explosions (e.g., car air-bag inflaters, electric-surge arresters of fire sprinkler actuators).

• 27. 

  Equipment and devices designed for explosive ordnance disposal; except:

  • 1. 

    bomb blankets; 2. containers designed for folding objects known to be, or suspected of being improvised explosive devices.

• 28. 

  Night vision and thermal imaging equipment and image intensifier tubes or solid state sensors

  therefor.

ANNEX DGE Coord EN

• 29. 

  Linear cutting explosive charges.

• 30. 

  Explosives and related substances as follows:

  • - 

    amatol, - nitrocellulose (containing more than 12,5 % nitrogen), - nitroglycol, - pentaerythritol tetranitrate (PETN), - picryl chloride, - tinitorphenylmethylnitramine (tetryl), - 2,4,6-trinitrotoluene (TNT)

• 31. 

  Software specially designed and technology required for all listed items.

______________

ANNEX DGE Coord EN

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