Council Regulation (EC) No 1183/2005 of 18 July 2005 imposing certain specific restrictive measures directed against persons acting in violation of the arms embargo with regard to the Democratic Republic of the Congo

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 a claim: (i) for performance of any obligation arising under or in connection with a contract or transaction; (ii) for extension or payment of a bond, financial guarantee or indemnity of whatever form; (iii) for compensation in respect of a contract or transaction; (iv) which is a counterclaim; (v) 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) ‘technical assistance’ means any technical support related to repairs, development, manufacture, assembly, testing, maintenance, or any other technical service, in the form of an instruction, advice, training, transmission of working knowledge or skills or consulting services and including verbal forms of assistance;

(i) ‘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;

(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 1a

It shall be prohibited to provide, directly or indirectly:

(a) technical assistance or brokering services related to the goods and technology listed in the Common Military List of the European Union (¹) (‘Common Military List’) or related to the provision, manufacture, maintenance and use of goods included in that list, to any non-governmental entity or person operating in the territory of the Democratic Republic of Congo (‘DRC’);

(b) financing or financial assistance related to the sale, supply, transfer or export of goods and technology listed in the Common Military List, including in particular grants, loans and export credit insurance, as well as insurance and reinsurance, for any sale, supply, transfer or export of such items, or for any provision of related technical assistance or brokering services to any non-governmental entity or person operating in the territory of the DRC;

Article 1b

By way of derogation from Article 1a, the competent authorities may authorise the provision of:

(a) technical assistance, financing or financial assistance or brokering services related to arms and related material intended solely for the support of or use by Monusco;

(b) technical assistance, financing or financial assistance or brokering services related to non-lethal military equipment intended solely for humanitarian or protective use;

(c) technical assistance, financing or financial assistance or brokering services related to arms and related material intended solely for the support of or use by the African Union Regional Task Force;

(d) technical assistance, financing or financial assistance or brokering services related to other sales and supply of arms and related materiel, as approved in advance by the Sanctions Committee.

Article 2

Paragraphs 1 and 2 shall not apply to the making available of funds or economic resources necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs where such assistance and other activities are carried out by:

(a) the United Nations, 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 Ia.

Article 2a

Annex I shall include the natural or legal persons, entities or bodies designated by the Sanctions Committee for engaging in or providing support for acts that undermine the peace, stability or security of the DRC. Such acts shall include:

(a) acting in violation of the arms embargo and related measures as referred to in Article 1 of Decision 2010/788/CFSP and Article 1a of this Regulation;

(b) being political and military leaders of foreign armed groups operating in the DRC who impede the disarmament and the voluntary repatriation or resettlement of combatants belonging to those groups;

(c) being political and military leaders of Congolese militias, including those receiving support from outside the DRC, who impede the participation of their combatants in disarmament, demobilisation and reintegration processes;

(d) recruiting or using children in armed conflict in violation of applicable international law;

(e) planning, directing, or committing acts in the DRC that constitute human rights violations or abuses or violations of international humanitarian law, as applicable, including those acts involving the targeting of civilians, including killing and maiming, rape and other sexual violence, abduction, forced displacement, and attacks on schools and hospitals;

(f) obstructing the access to or the distribution of humanitarian assistance in the DRC;

(g) supporting individuals or entities, including armed groups or criminal networks, involved in destabilizing activities in the DRC through the illicit exploitation or trade of natural resources, including gold or wildlife as well as wildlife products;

(h) acting on behalf of or at the direction of a designated person or entity, or acting on behalf of or at the direction of an entity owned or controlled by a designated person or entity;

(i) planning, directing, sponsoring or participating in attacks against MONUSCO peacekeepers or United Nations personnel, including members of the Group of Experts, or against medical personnel or humanitarian personnel;

(j) providing financial, material, or technological support for, or goods or services to a designated person or entity;

(k) being involved in the production, manufacture or use in the DRC of improvised explosive devices, or in the commission, planning, ordering, aiding of, abetting or otherwise assisting attacks in the DRC with improvised explosive devices.

Article 2b

Annex Ia shall include the natural or legal persons, entities or bodies designated by the Council on any of the following grounds:

(a) obstructing a consensual and peaceful solution towards elections in the DRC, including by acts of violence, repression or inciting violence, or by undermining the rule of law;

(b) planning, directing, or committing acts that constitute serious human rights violations or abuses in the DRC;

(c) being responsible for sustaining the armed conflict, instability or insecurity in the DRC;

(d) providing support to natural or legal persons, entities or bodies responsible for sustaining the armed conflict, instability or insecurity in the DRC;

(e) inciting violence in connection with the actions mentioned in points (b), (c) and (d);

(f) exploiting the armed conflict, instability or insecurity in the DRC, including through the illicit exploitation or trade of natural resources and wildlife;

(g) being associated with natural or legal persons, entities or bodies referred to in points (a), (b), (c), (d), (e) or (f).

Article 3

By way of derogation from Article 2, the competent authorities may authorise the release of certain frozen funds or economic resources, or the making available of certain funds or economic resources, under such conditions as they deem appropriate, after having determined that the funds or economic resources concerned are:

(a) necessary to satisfy the basic needs of natural or legal persons, entities or bodies listed in Annex I or Annex Ia 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 and reimbursement of incurred expenses associated with the provision of legal services; or

(c) intended exclusively for payment of fees or services charges for routine holding or maintenance of frozen funds or economic resources, and

where the authorisation concerns a person, entity and body listed in Annex I, the Member State concerned has notified the Sanctions Committee of that determination and its intention to grant an authorisation, and the Sanctions Committee has not objected to that course of action within four working days of notification.

By way of derogation from Article 2, the competent authorities may authorise the release of certain frozen funds or economic resources or the making available of certain frozen funds or economic resources, after having determined that the funds or economic resources are necessary for extraordinary expenses, provided that:

(a) where the authorisation concerns a natural or legal person, entity or body listed in Annex I, the Sanctions Committee has been notified of this determination by the Member State concerned and that the determination has been approved by that Committee; and

(b) where the authorisation concerns a natural or legal person, entity or body listed in Annex Ia, the Member State concerned has notified 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.

Article 4

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

(a) the funds or economic resources are the subject of: (i) a judicial, administrative or arbitral lien established prior to 18 April 2005 or of a judicial, administrative or arbitral judgement rendered prior to that date, for a natural or legal person, entity or body listed in Annex I; or (ii) an arbitral decision rendered prior to the date on which the natural or legal person, entity or body was listed in Annex Ia, or of a judicial or administrative decision rendered in the Union, or a judicial decision enforceable in the Member State concerned, prior to or after that date;

(b) the funds or economic resources will be used exclusively to satisfy claims secured by such a lien or recognised as valid in such a judgement, within the limits set by applicable laws and regulations governing the rights of persons having such claims;

(c) the lien or judgement is not for the benefit of a person, entity or body listed in Annex I or Annex Ia;

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

Article 4b

Article 5

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 prior to the date on which those accounts became subject to this Regulation;

(c) payments due to a natural or legal person, entity or body listed in Annex Ia under judicial, administrative or arbitral decisions rendered in the EU or enforceable in the Member State concerned,

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

Article 6

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 accounts and amounts frozen in accordance with Article 2, to the competent authorities of the Member States where they are resident or located, and shall transmit such information, directly or through these competent authorities, to the Commission;

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

Article 7

Article 7a

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 Annexes I and Ia;

(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).

Article 7b

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 Articles 1a, 2(1) and 2(2).

Article 8

The Commission and Member States shall immediately inform each other of the measures taken under this Regulation and shall supply each other with any other relevant information at their disposal in connection with this Regulation, in particular information in respect of violation and enforcement problems and judgements handed down by national courts.

Article 9

Article 10

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

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

Article 11

This Regulation shall apply

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

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

(c) to any person inside or outside the territory of the Community who is a national of a Member State;

(d) to any legal person, entity or body which is incorporated or constituted under the law of a Member State;

(e) to any legal person, entity or body doing business within the Community.

Article 12

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

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

ANNEX I