Council Regulation (EU) 2022/2309 of 25 November 2022 concerning restrictive measures in view of the situation in Haiti

Article 1

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

(a) ‘claim’ means any claim, whether asserted by legal proceedings or not, made before or after 28 November 2022, under or in connection with a contract or transaction, and 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’ means 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 which 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 derivative 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 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 2653 (2022);

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

(j) ‘territory of the Union’ means the territories of the Member States to which the Treaty is applicable, under the conditions laid down in the Treaty, including their airspace;

(k) ‘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;

(l) ‘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.

Article 2

It shall be prohibited to:

(a) provide, directly or indirectly, technical assistance or brokering services related to military activities or the provision, manufacture, maintenance and use of 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 to any natural or legal person, entity or body in Haiti or for use in Haiti;

(b) provide, directly or indirectly, financing or financial assistance related to military activities or the provision, manufacture, maintenance and use of 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 the provision of related technical assistance or brokering services, to any natural or legal person, entity or body in Haiti or for use in Haiti.

Article 3

Article 4

Annex I shall include natural or legal persons, entities and bodies identified by the United Nations Security Council (the ‘Security Council’) or the Sanctions Committee as being responsible for or complicit in, or having engaged in, directly or indirectly, actions that threaten the peace, security or stability of Haiti, including but not limited to natural or legal persons having threatened the peace, security or stability of Haiti through any of the following actions:

(a) engaging in, directly or indirectly, or supporting criminal activities and violence involving armed groups and criminal networks that promote violence, including forcible recruitment of children by such groups and networks, kidnappings, trafficking in persons and the smuggling of migrants, and homicides and sexual and gender-based violence;

(b) supporting illicit trafficking and diversion of arms and related materiel, or illicit financial flows related thereto;

(c) acting for or on behalf of or at the direction of or otherwise supporting or financing a person or entity designated in connection with the activity described in points (a) and (b), including through the direct or indirect use of the proceeds from organised crime, including proceeds from illicit production and trafficking in drugs and their precursors originating in or transiting through Haiti, the trafficking in persons and the smuggling of migrants from Haiti or the smuggling and trafficking of arms to or from Haiti;

(d) acting in violation of the arms embargo established in paragraph 11 of UNSCR 2653 (2022), or as having directly or indirectly supplied, sold, or transferred to armed groups or criminal networks in Haiti, or as having been the recipient of, arms or any related materiel, or any technical advice, training or assistance, including financing and financial assistance, related to violent activities of armed groups or criminal networks in Haiti;

(e) planning, directing, or committing acts that violate international human rights law or acts that constitute human rights abuses, including those involving extrajudicial killing, including of women and children, and the commission of acts of violence, abduction, enforced disappearances or kidnappings for ransom in Haiti;

(f) planning, directing or committing acts involving sexual and gender-based violence, including rape and sexual slavery, in Haiti;

(g) obstructing delivery of humanitarian assistance to Haiti or access to, or distribution of, humanitarian assistance in Haiti;

(h) attacking personnel or premises of United Nations missions and operations in Haiti, or providing support for such attacks;

(i) engaging in illicit exploitation of natural resources or illicit trade in natural resources.

Article 4a

Annex Ia shall include the natural or legal persons, entities or bodies designated by the Council that are:

(a) responsible for or complicit in, or having engaged in, directly or indirectly, actions that threaten the peace, stability and security of Haiti, including: (i) engaging in, directly or indirectly, or supporting criminal activities and violence involving armed groups and criminal networks that promote violence, including forcible recruitment of children by such groups and networks, kidnappings, trafficking in persons and the smuggling of migrants, and homicides and sexual and gender-based violence; (ii) supporting illicit trafficking and diversion of arms and related materiel, or illicit financial flows related thereto; (iii) acting for or on behalf of or at the direction of, or otherwise supporting or financing, a person or entity designated in connection with the activity described in points (i) and (ii), including through the direct or indirect use of the proceeds from organised crime, including proceeds from illicit production and trafficking in drugs and their precursors originating in or transiting through Haiti, the trafficking in persons and the smuggling of migrants from Haiti, or the smuggling and trafficking of arms to or from Haiti; (iv) acting in violation of the arms embargo, or having directly or indirectly supplied, sold or transferred to armed groups or criminal networks in Haiti, or having been the recipient of, arms or any related materiel, or any technical advice, training or assistance, including financing and financial assistance, related to violent activities of armed groups or criminal networks in Haiti; (v) planning, directing or committing acts that violate international human rights law or acts that constitute human rights abuses, including those involving extrajudicial killing, including of women and children, and the commission of acts of violence, abduction, enforced disappearances or kidnappings for ransom in Haiti; (vi) planning, directing or committing acts involving sexual and gender-based violence, including rape and sexual slavery, in Haiti; (vii) obstructing the delivery of humanitarian assistance to Haiti or access to, or the distribution of, humanitarian assistance in Haiti; (viii) attacking personnel or premises of Union delegations and Member State diplomatic missions and operations in Haiti, or providing support for such attacks; (ix) engaging in illicit exploitation of natural resources or illicit trade in natural resources;

(b) undermining democracy or the rule of law in Haiti through serious financial misconduct concerning public funds or the unauthorised export of capital; or

(c) associated with natural or legal persons, entities or bodies designated under points (a) and (b).

Article 5

Article 3 (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

(f) other appropriate actors as determined by the Sanctions Committee as regards Annex I and by the Council as regards Annex Ia.

Article 6

By way of derogation from Article 3, 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 food, 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 payment of fees or service charges for routine holding or maintenance of frozen funds or economic resources, where the authorisation concerns a natural or legal person, entity or body listed in Annex I and provided that the competent authority of the Member State concerned has notified the Sanctions Committee of that determination and of its intention to grant an authorisation, and in the absence of a negative decision by the Sanctions Committee within 5 working days of such notification.

By way of derogation from Article 3, 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, after having determined that the funds or economic resources concerned are necessary for extraordinary expenses, provided that:

(a) where the authorisation concerns a natural or legal person, entity or body listed in Annex I, such determination has been notified to the Sanctions Committee by the competent authority of 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 2 weeks prior to granting the authorisation.

Article 6a

Article 6b

Article 7

By way of derogation from Article 3(1), the competent authorities of the Member States may authorise the release of certain frozen funds or economic resources for natural or legal persons, entities or bodies listed in Annex I or Annex Ia, or the making available of certain funds or economic resources for natural or legal persons, entities or bodies listed in Annex I or Annex Ia, if the following conditions are met:

(a) the funds or economic resources are the subject of: (i) for a natural or legal person, entity or body listed in Annex I, a judicial, administrative or arbitral decision established prior to the date on which the natural or legal person, entity or body referred to in Article 4 was included in Annex I, or of a judicial, administrative or arbitral lien rendered prior to that date; (ii) for a natural or legal person, entity or body listed in Annex Ia, an arbitral decision rendered prior to the date on which the natural or legal person, entity or body referred to in Article 4a was included 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 a decision as referred to in point (a) 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 or lien is not for the benefit of a natural or legal person, entity or body listed in Annex I or Annex Ia;

(d) the recognition of the decision or lien is not contrary to public policy in the Member State concerned; and

(e) for a natural or legal person, entity or body listed in Annex I, the Sanctions Committee has been notified by the Member State of the decision or lien.

Article 8

By way of derogation from Article 3(1) and provided that a payment by a natural or legal person, entity or body listed in Annex I or Annex Ia is due under a contract or agreement that was concluded by, or an obligation that arose for, the natural or legal person, entity or body concerned, before the date on which that natural or legal person, entity or body was included in Annex I or Annex Ia, 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 will be used for a payment by a natural or legal person, entity or body listed in Annex I or Annex Ia; and

(b) the payment is not in breach of Article 3(2).

Article 9

Article 3 (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 4 was included in Annex I or Annex Ia; or

(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 Union or enforceable in the Member State concerned, provided that any such interest, other earnings and payments are frozen in accordance with Article 3.

Article 10

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 3(1), to the competent authority of the Member State where they are resident or located, and transmit such information, directly or through the Member State, to the Commission; and

(b) cooperate with the competent authority in any verification of the information referred to in point (a).

Article 11

Natural or legal persons, entities or bodies listed in Annex I or Annex Ia shall:

(a) report before 9 January 2023 or within 6 weeks from the date of listing in Annex I, whichever is the latest, funds or economic resources within the jurisdiction of a Member State belonging to, owned, held or controlled by them, to the competent authority of the Member State where those funds or economic resources are located;