Legal provisions of JOIN(2014)40 - Restrictive measures in view of the situation in Yemen

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dossier JOIN(2014)40 - Restrictive measures in view of the situation in Yemen.
document JOIN(2014)40 EN
date December 18, 2014

Contents

Article 1

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

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

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

(d)‘economic resources’ means assets of every kind, whether tangible or intangible, movable or immovable, which are not funds, but may be used to obtain funds, goods or services;

(e)‘freezing of economic resources’ means preventing the use of economic resources to obtain funds, goods or services in any way, including, but not limited to, by selling, hiring or mortgaging them;

(f)‘freezing of funds’ means preventing any move, transfer, alteration, use of, access to, or dealing with funds in any way that would result in any change in their volume, amount, location, ownership, possession, character, destination or other change that would enable the funds to be used, including portfolio management;

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

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

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

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

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

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

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

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

(h)‘Sanctions Committee’ means the Committee of the United Nations Security Council established pursuant to paragraph 19 of UNSCR 2140 (2014);

(i)‘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

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 to this Regulation 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.

Article 3

1. Annex I shall include natural or legal persons, entities and bodies identified by the Sanctions Committee as engaging in or providing support for acts that threaten the peace, security or stability of Yemen, including but not limited to:

(a)acts obstructing or undermining the successful completion of the political transition, as outlined in the Gulf Cooperation Council (GCC) Initiative and Implementation Mechanism Agreement;

(b)acts impeding the implementation of the outcomes of the final report of the Comprehensive National Dialogue Conference through violence, or attacks on essential infrastructure;

(c)planning, directing or committing acts that violate applicable international human rights law or international humanitarian law, or acts that constitute human rights abuses, in Yemen.

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

3. Annex I shall include, where available, information provided by the 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 Security Council or by the Sanctions Committee.

Article 4

By way of derogation from Article 2, the competent authorities of the Member States 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, 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;

(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 5

By way of derogation from Article 2, the competent authorities of the Member States 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 competent authority concerned has determined that the funds or economic resources are necessary for extraordinary expenses, and provided that the Member State concerned has notified the Sanctions Committee of that determination and the Sanctions Committee has approved that determination.

Article 6

By way of derogation from Article 2, the competent authorities in the Member States may authorise the release of certain frozen funds or economic resources, if the following conditions are met:

(a)the funds or economic resources in question are the subject of a judicial, administrative or arbitral lien established prior to the date on which the person, entity or body referred to in Article 2 was included in Annex I, or of a judicial, administrative or arbitral judgment delivered 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;

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

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

Article 7

By way of derogation from Article 2 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 of the Member States 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 shall be used for a payment by a natural or legal person, entity or body listed in Annex I;

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

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

Article 8

1. Article 2(2) shall not prevent the crediting of the 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 has been included in Annex I; or

(c)payments due under a judicial, administrative or arbitral lien or judgment, as referred to in Article 6;

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

Article 9

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

(a)supply immediately any information which would facilitate compliance with this Regulation, such as information on accounts and amounts frozen in accordance with Article 2, 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 10

It shall be prohibited to participate, knowingly and intentionally, in activities where the object or effect is to circumvent the measures referred to in Article 2.

Article 11

1. The freezing of funds and economic resources or the refusal to make funds or economic resources available, done 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 carrying out such an action, or its directors or employees, unless it is proven 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 prohibitions set out in this Regulation.

Article 12

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

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

(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 13

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:

(a)in respect of funds frozen under Article 2 and authorisations granted under Articles 4, 5, 6 and 7;

(b)in respect of 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 14

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

Article 15

1. Where the United Nations 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 United Nations Security Council or the Sanctions Committee 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 16

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

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

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 19

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

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