Council Regulation (EU) 2016/44 of 18 January 2016 concerning restrictive measures in view of the situation in Libya and repealing Regulation (EU) No 204/2011

Article 1

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

(a) ‘funds’ means financial assets and benefits of every kind, including but not limited to: (i) cash, cheques, claims on money, drafts, money orders and other payment instruments; (ii) deposits with financial institutions or other entities, balances on accounts, debts and debt obligations; (iii) publicly- and privately-traded securities and debt instruments, including stocks and shares, certificates representing securities, bonds, notes, warrants, debentures and derivatives contracts; (iv) interest, dividends or other income on or value accruing from or generated by assets; (v) credit, right of set-off, guarantees, performance bonds or other financial commitments; (vi) letters of credit, bills of lading, bills of sale; (vii) documents evidencing an interest in funds or financial resources;

(b) ‘freezing of funds’ means preventing any move, transfer, alteration or 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;

(c) ‘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;

(d) ‘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;

(e) ‘technical assistance’ means any technical support related to repairs, development, manufacture, assembly, testing, maintenance, or any other technical service, and may take forms such as instruction, advice, training, the transmission of working knowledge or skills or consulting services, including verbal forms of assistance;

(f) ‘Sanctions Committee’ means the Committee of the United Nations Security Council which was established pursuant to paragraph 24 of UNSCR 1970 (2011);

(g) ‘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;

(h) ‘designated vessels’ means vessels designated by the Sanctions Committee as referred to in paragraph 11 of UNSCR 2146 (2014), as listed in Annex V to this Regulation;

(i) ‘the Government of Libya focal point’ means the focal point appointed by the Government of Libya as notified to the Sanctions Committee in accordance with paragraph 3 of UNSCR 2146 (2014);

(j) ‘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;

(k) ‘financing or financial assistance’ means any action, irrespective of the particular means chosen, whereby the natural or legal person, entity or body concerned, conditionally or unconditionally, disburses or commits to disburse its own funds or economic resources, including but not limited to grants, loans, guarantees, suretyships, bonds, letters of credit, supplier credits, buyer credits, import or export advances and all types of insurance and reinsurance, including export credit insurance. Payment as well as terms and conditions of payment of the agreed price for a good or a service, made in line with normal business practice, do not constitute financing or financial assistance;

(l) ‘competent authorities’ means the competent authorities of the Member States as identified on the websites listed in Annex IV.

Article 2

It shall be prohibited:

(a) to sell, supply, transfer or export, directly or indirectly, equipment which might be used for internal repression as listed in Annex I, whether or not originating in the Union, to any natural or legal person, entity or body in Libya or for use in Libya;

(b) to provide, directly or indirectly, technical assistance or brokering services related to equipment which might be used for internal repression as listed in Annex I, to any natural or legal person, entity or body in Libya or for use in Libya;

(c) to provide, directly or indirectly, financing or financial assistance related to equipment which might be used for internal repression as listed in Annex I, for any sale, supply, transfer or export of such items, or for any provision of related technical assistance to any natural or legal person, entity or body in Libya or for use in Libya;

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

Article 2a

Prior authorisation shall be required for:

(a) the sale, supply, transfer or export, directly or indirectly, of the goods set out in Annex VII, whether or not originating in the Union, to any person, entity or body in Libya or for use in Libya;

(b) the provision of technical assistance or brokering services related to goods set out in Annex VII or related to the provision, manufacture, maintenance and use of such goods, directly or indirectly, to any person, entity or body in Libya or for use in Libya;

(c) the provision of financing or financial assistance related to goods set out in Annex VII, including in particular grants, loans and export credit insurance for any sale, supply, transfer or export of such items, or for any provision of related technical assistance or brokering services, directly or indirectly, to any person, entity or body in Libya or for use in Libya.

Article 3

It shall be prohibited:

(a) to provide, directly or indirectly, technical assistance or brokering services related to the goods and technology listed in the Common Military List or firearms, their parts and essential components, and ammunition as defined in Regulation (EU) No 258/2012 or related to the provision, manufacture, maintenance and use of such items, to any natural or legal person, entity or body in Libya or for use in Libya;

(b) to provide, directly or indirectly, financing or financial assistance related to the goods and technology listed in the Common Military List or firearms, their parts and essential components, and ammunition as defined in Regulation (EU) No 258/2012 for any sale, supply, transfer or export of such items, or for any provision of related technical assistance or brokering services to any natural or legal person, entity or body in Libya or for use in Libya;

(c) to provide, directly or indirectly, technical assistance, financing or financial assistance related to the provision of armed mercenary personnel in Libya or for use in Libya;

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

Paragraphs 1 and 2 shall not apply to:

(a) the sale, supply, transfer or export of non-lethal military equipment or the provision of related technical assistance, brokering services, financing or financial assistance intended solely for humanitarian purposes or protective use;

(b) protective clothing, including flak jackets and military helmets, temporarily exported to Libya by UN personnel, personnel of the Union or its Member States, representatives of the media and humanitarian and development workers and associated personnel for their personal use only;

(c) the sale, supply, transfer or export of non-lethal military equipment or the provision of related technical assistance, brokering services, financing or financial assistance intended solely for security or disarmament assistance to the Libyan government.

Article 3a

It shall be prohibited to import, purchase or transfer, directly or indirectly, the goods and technology listed in the Common Military List, as well as firearms, their parts and essential components, and ammunition as defined in Regulation (EU) No 258/2012 of the European Parliament and of the Council, from Libya, whether or not originating in the territory of Libya.

Article 4

To prevent the transfer of goods and technology which are covered by the Common Military List or the supply, sale, transfer, export or import of which is prohibited by this Regulation, for all goods brought into or leaving the customs territory of the Union from or to Libya, in addition to the rules governing the obligation to provide pre-arrival and pre-departure information as determined in the relevant provisions concerning entry and exit summary declarations as well as customs declarations in Regulations (EC) No 450/2008 (³) and (EU) No 952/2013 (⁴) of the European Parliament and of the Council, the person who provides that information shall declare whether the goods are covered by the Common Military List or by this Regulation and, where the exported goods are subject to authorisation, specify the particulars of the export licence granted. These additional elements shall be submitted to the competent customs authorities of the Member State concerned either in written form or using a customs declaration, as appropriate.

Article 5

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 Annexes II and VI, and by the Council as regards Annex III.

Article 6

Annex III shall consist of natural or legal persons, entities and bodies, not covered by Annex II that:

(a) are involved in or complicit in ordering, controlling, or otherwise directing the commission of serious human rights abuses against persons in Libya, including by being involved or complicit in planning, commanding, ordering or conducting attacks, including aerial bombardments, in violation of international law on civilian populations or facilities;

(b) have violated or have assisted in violating the provisions of UNSCR 1970 (2011), UNSCR 1973 (2011) or of this Regulation;

(c) have been identified as having been involved in the repressive policies of the former regime of Muammar Qadhafi in Libya, or otherwise formerly associated with that regime, and pose a continued risk to the peace, stability or security of Libya, or to the successful completion of the Libyan political transition;

(d) are engaged in or provide support for acts that threaten the peace, stability or security of Libya or obstruct or undermine the successful completion of Libya’s political transition, including by: (i) planning, directing, or committing acts in Libya that violate applicable international human rights law or international humanitarian law, or acts that constitute human rights abuses, in Libya; (ii) attacks against any air, land or sea port in Libya, or against a Libyan state institution or installation, or against any foreign mission in Libya; (iii) providing support for armed groups or criminal networks through the illicit exploitation of crude oil or any other natural resources in Libya; (iv) threatening or coercing Libyan State financial institutions and the Libyan National Oil Company, or engaging in any action that may lead to or result in the misappropriation of Libyan State funds; (v) violating, or assisting in the evasion of, the provisions of the arms embargo in Libya established in UNSCR 1970 (2011) and Article 1 of this Regulation; (vi) obstructing or undermining the elections planned for in the Libyan Political Dialogue Forum roadmap; (vii) being persons, entities or bodies acting for or on behalf or at the direction of any of the above, or being entities or bodies owned or controlled by them or by persons, entities or bodies listed in Annex II or III; or

(e) own or control Libyan State funds misappropriated during the former regime of Muammar Qadhafi in Libya which could be used to threaten the peace, stability or security of Libya, or to obstruct or undermine the successful completion of its political transition.

Article 7

With regard to persons, entities and bodies not designated in Annex II or III, in which a person, entity or body designated in those Annexes has a stake, the obligation to freeze the funds and economic resources of the designated person, entity or body shall not prevent such non-designated persons, entities or bodies from continuing to conduct legitimate business in so far as this business does not involve making available any funds or economic resources to a designated person, entity or body.

Article 8

By way of derogation from Article 5, the competent authorities in the Member States, as indicated on the websites listed in Annex IV, 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 are:

(a) necessary to satisfy the basic needs of persons listed in Annex II or III or referred to in Article 5(4), and their dependent family members, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges;

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

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

provided that, where the authorisation concerns a person, entity or body listed in Annex II or referred to in Article 5(4), 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 five working days of notification.

By way of derogation from Article 5, the competent authorities of the Member States, as indicated on the websites listed in Annex IV, 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 frozen funds or economic resources are necessary for extraordinary expenses provided that the following conditions are met:

(a) where the authorisation concerns a person, entity or body listed in Annex II or referred to in Article 5(4), the Sanctions Committee has been notified of that determination by the Member State concerned and the determination has been approved by that Committee; and

(b) where the authorisation concerns a person, entity or body listed in Annex III, the competent authority has notified the grounds on which it considers that a specific authorisation should be granted to the competent authorities of the other Member States and to the Commission at least two weeks before the authorisation.

Article 9

By way of derogation from Article 5, with regard to persons, entities or bodies listed in Annex II and entities referred to in Article 5(4), the competent authorities in the Member States, as listed in Annex IV, 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 or of a judicial, administrative or arbitral judgement rendered: (i) prior to the date on which the person, entity or body was included in Annex II; or (ii) prior to the date on which the entity referred to in Article 5(4) was designated by the Security Council;

(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 II or III;

(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 of the lien or judgment.

By way of derogation from Article 5, with regard to persons, entities or bodies listed in Annex III, the competent authorities in the Member States, as listed in Annex IV, 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 an arbitral decision rendered prior to the date on which the natural or legal person, entity or body referred to in Article 5 was included in Annex III, 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 in question will be used exclusively to satisfy claims secured by such a decision or recognised as valid in such a decision, within the limits set by applicable laws and regulations governing the rights of persons having such claims;

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

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

Article 10