Council Regulation (EU) 2023/2406 of 23 October 2023 concerning restrictive measures in view of the situation in Niger

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 the date of entry into force of this Regulation, under or in connection with a contract or transaction, and in particular: (i) a claim for the performance of any obligation arising under or in connection with a contract or transaction; (ii) a claim for the 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 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 benefit 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 showing evidence of an interest in funds or financial resources;

(h) ‘territory of the Union’ means the territories of the Member States to which the Treaty on European Union is applicable, under the conditions laid down in that Treaty, including their airspace.

Article 2

Annex I shall include natural or legal persons, entities or bodies:

(a) responsible for actions or policies that threaten the peace, stability or security of Niger, or who have engaged directly or indirectly in, provided support to, or benefited from such actions or policies;

(b) undermining the constitutional order in Niger;

(c) whose actions, policies or activities undermine democracy or the rule of law in Niger, including those who are responsible for the arbitrary detention of democratically elected authorities of Niger;

(d) involved in planning, directing or committing acts in Niger that constitute serious human rights violations or abuses or violations of international humanitarian law, as applicable;

(e) associated with the natural or legal persons, entities or bodies covered by points (a) to (d).

Article 3

By way of derogation from Article 2(1) or (2), 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, 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 the payment of fees or service charges for the routine holding or maintenance of frozen funds or economic resources;

(d) necessary for extraordinary expenses, provided that the competent authority concerned has notified the competent authorities of the 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; or

(e) to be paid into or from an account of a diplomatic mission or consular post or an international organisation enjoying immunities in accordance with international law, insofar as such payments are intended to be used for official purposes of the diplomatic mission or consular post or international organisation.

Article 4

Article 2 (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) organisations and agencies to which the Union has granted the Humanitarian Partnership Certificate or which are certified or recognised by a Member State in accordance with national procedures;

(f) Member States’ specialised agencies; or

(g) the employees, grantees, subsidiaries, or implementing partners of the entities mentioned in points (a) to (f) while and to the extent that they are acting in those capacities.

The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under this Article within four weeks of such authorisation.

Article 5

By way of derogation from Article 2(1), competent authorities may authorise the release of certain frozen funds or economic resources, if the following conditions are met:

(a) the funds or economic resources 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 2 was listed in Annex I, or the subject of a judicial or administrative decision rendered in the Union, or of 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 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 I; and

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

Article 6

By way of derogation from Article 2(1) 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 was included in Annex I, the competent authorities 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; and

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

Article 7

Article 2 (2) shall not apply to the addition to frozen accounts of:

(a) interest or other earnings on those accounts, provided that any such interest or other earnings are frozen in accordance with Article 2(1);

(b) payments due under contracts, agreements or obligations that were concluded or that arose before the date on which the natural or legal person, entity or body referred to in Article 2 was included in Annex I, provided that any such payments are frozen in accordance with Article 2(1); or

(c) payments due under judicial, administrative or arbitral decisions rendered in a Member State or enforceable in the Member State concerned, provided that any such payments are frozen in accordance with Article 2(1).

Article 8

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(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 9

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

(a) report within six weeks from the date of listing in Annex I 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; and

(b) cooperate with the competent authority in any verification of such information.

Article 10

Article 11

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) 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 natural or legal persons, entities or bodies referred to in point (a).

Article 12

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 in respect of:

(a) funds frozen under Article 2 and authorisations granted under the derogations set out in this Regulation;

(b) violation and enforcement problems and judgments handed down by national courts.

Article 13

Article 14

Article 15

Article 16

The Council, the Commission and the High Representative of the Union for Foreign Affairs and Security Policy (the ‘High Representative’) may process personal data in order to carry out its tasks under this Regulation. These tasks include:

(a) as regards the Council, preparing and making amendments to Annex I;

(b) as regards the High Representative, preparing amendments to Annex I;

(c) as regards the Commission: (i) adding the contents of Annex I to the electronic, consolidated list of persons, groups and entities subject to Union financial sanctions and to the interactive sanctions map, both of which are publicly available (ii) processing information on the impact of the measures of this Regulation, such as the value of frozen funds and information on authorisations granted by the competent authorities.

Article 17

Article 18

Any information provided to or received by the Commission in accordance with this Regulation shall be used by the Commission only for the purposes for which it was provided or received.

Article 19

This Regulation shall apply:

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

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

(c) to any natural 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 20

This Regulation shall enter into force on the day following that 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

List of natural and legal persons, entities and bodies referred to in Article 2

[…]

ANNEX II

Websites for information on the competent authorities and address for notifications to the Commission

BELGIUM

https://diplomatie.belgium.be/en/policy/policy_areas/peace_and_security/sanctions

BULGARIA

https://www.mfa.bg/en/EU-sanctions

CZECHIA

www.financnianalytickyurad.cz/mezinarodni-sankce.html

DENMARK

https://um.dk/udenrigspolitik/sanktioner/ansvarlige-myndigheder

GERMANY

https://www.bmwi.de/Redaktion/DE/Artikel/Aussenwirtschaft/embargos-aussenwirtschaftsrecht.html

ESTONIA

https://vm.ee/sanktsioonid-ekspordi-ja-relvastuskontroll/rahvusvahelised-sanktsioonid

IRELAND

https://www.dfa.ie/our-role-policies/ireland-in-the-eu/eu-restrictive-measures/

GREECE

http://www.mfa.gr/en/foreign-policy/global-issues/international-sanctions.html

SPAIN

https://www.exteriores.gob.es/es/PoliticaExterior/Paginas/SancionesInternacionales.aspx

FRANCE

http://www.diplomatie.gouv.fr/fr/autorites-sanctions/

CROATIA

https://mvep.gov.hr/vanjska-politika/medjunarodne-mjere-ogranicavanja/22955

ITALY

https://www.esteri.it/it/politica-estera-e-cooperazione-allo-sviluppo/politica_europea/misure_deroghe/

CYPRUS

https://mfa.gov.cy/themes/

LATVIA

https://www.fid.gov.lv/en

LITHUANIA

https://www.urm.lt/en/lithuania-in-the-region-and-the-world/lithuanias-security-policy/international-sanctions/997

LUXEMBOURG

https://maee.gouvernement.lu/fr/directions-du-ministere/affaires-europeennes/organisations-economiques-int/mesures-restrictives.html

HUNGARY

https://kormany.hu/kulgazdasagi-es-kulugyminiszterium/ensz-eu-szankcios-tajekoztato

MALTA

https://smb.gov.mt/

NETHERLANDS

https://www.rijksoverheid.nl/onderwerpen/internationale-sancties

AUSTRIA

https://www.bmeia.gv.at/themen/aussenpolitik/europa/eu-sanktionen-nationale-behoerden/

POLAND