27.4.2018   

EN

Official Journal of the European Union

L 108/1

(1)

On 26 February 2018, the Council adopted conclusions condemning the ongoing widespread, systematic grave human rights violations committed by the Myanmar/Burma military and security forces and calling on the Government of Myanmar/Burma and the security forces to ensure that security, the rule of law and accountability prevail in Rakhine, Kachin and Shan States.

(2)

In this context the Council adopted Decision (CFSP) 2018/655 (2) amending Decision 2013/184/CFSP, whereby it imposed further restrictive measures on Myanmar/Burma in the form of a prohibition on the export of dual-use goods for military and Border Guard Police end-users, restrictions on the export of equipment for monitoring communications that might be used for internal repression, and targeted restrictive measures against certain natural persons from the Myanmar Armed Forces (Tatmadaw) and the Border Guard Police responsible for serious human rights violations, responsible for obstructing the provision of humanitarian assistance to civilians in need and responsible for obstructing the conduct of independent investigations into alleged serious human rights violations or abuses, as well as persons, entities or bodies associated with them.

(3)

Council Regulation (EU) No 401/2013 (3) gives effect to the measures provided for in Decision 2013/184/CFSP. Certain measures provided for in Decision (CFSP) 2018/655 fall within the scope of the Treaty and therefore, with a view, in particular, to ensuring their uniform application by economic operators in all Member States, regulatory action at the level of the Union is necessary in order to implement them.

(4)

The passage of humanitarian assistance for civilians in need, subject to control of the parties to the conflict and in accordance with international humanitarian law, should not be impeded. It is thus appropriate to apply restrictions on natural persons from the Myanmar Armed Forces (Tatmadaw) responsible for obstructing the rapid and unimpeded passage of humanitarian assistance for civilians in need. Such restrictions should not unduly affect the delivery of humanitarian assistance and should be applied in full consideration of human rights law and of the applicable rules of international humanitarian law.

(5)

Regulation (EU) No 401/2013 should therefore be amended accordingly.

(6)

This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, in particular the right to an effective remedy and a fair trial and the right to the protection of personal data. This Regulation should be applied in accordance with those rights.

(7)

The power to amend the list in Annex IV to Regulation (EU) No 401/2013 should be exercised by the Council in order to ensure consistency with the process for amending and reviewing the Annex to Decision (CFSP) 2018/655.

(8)

For the implementation of this Regulation, and in order to create maximum legal certainty within the Union, the names and other relevant data concerning natural and legal persons, entities and bodies whose funds and economic resources are to be frozen in accordance with this Regulation should be made public. Any processing of personal data should comply with Regulation (EC) No 45/2001 of the European Parliament and of the Council (4) and Directive 95/46/EC of the European Parliament and of the Council (5).

(9)

In order to ensure that the measures provided for in this Regulation are effective, it should enter into force immediately,

(1)

Article 1 is replaced by the following:

‘Article 1

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

(*1)  Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ L 269, 10.10.2013, p. 1).’;"

(2)

in Article 3, paragraphs 3 and 4 are deleted;

(3)

the following Articles are inserted:

‘Article 3a

1.   It shall be prohibited to sell, supply, transfer or export, directly or indirectly, dual-use goods and technology as included in Annex I to Council Regulation (EC) No 428/2009 (*2), whether or not originating in the Union, to any natural or legal person, entity or body in Myanmar/Burma or for use in Myanmar/Burma, if those items are or may be intended, in their entirety or in part, for military use, military end-user or the Border Guard Police.

Where the end-user is the Myanmar's/Burma's military, any dual-use goods and technology procured by it shall be deemed to be for military use.

2.   When deciding on requests for authorisations in accordance with Regulation (EC) No 428/2009, the competent authorities shall not grant an authorisation for exports to any natural or legal person, entity or body in Myanmar/Burma or for use in Myanmar/Burma, if they have reasonable grounds to believe that the end-user might be a military end-user, the Border Guard Police or that the goods might have a military end-use.

3.   Exporters shall supply the competent authorities with all relevant information required for their application for an export authorisation.

4.   It shall be prohibited:

5.   The prohibitions in paragraphs 1 and 4 shall be without prejudice to the execution of contracts concluded before 27 April 2018 or ancillary contracts necessary for the execution of such contracts.

6.   Paragraph 1 shall not apply to protective clothing, including flak jackets and military helmets, temporarily exported to Myanmar/Burma by UN personnel, personnel of the EU or its Member States, representatives of the media and humanitarian and development workers and associated personnel for their personal use only.

Article 3b

1.   It shall be prohibited to sell, supply, transfer or export, directly or indirectly, equipment, technology or software identified in Annex III, whether or not originating in the Union, to any person, entity or body in Myanmar/Burma or for use in Myanmar/Burma, unless the competent authority of the relevant Member State, as identified on the websites listed in Annex II, has given prior authorisation.

2.   The competent authorities of the Member States, as identified on the websites listed in Annex II, shall not grant any authorisation under paragraph 1 if they have reasonable grounds to determine that the equipment, technology or software in question would be used for internal repression by the Government of Myanmar/Burma, public bodies, corporations or agencies, or any person or entity acting on their behalf or at their direction.

3.   Annex III shall include equipment, technology or software intended primarily for use in the monitoring or interception of internet or telephone communications.

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

Article 3c

1.   Unless the competent authority of the relevant Member State, as identified on the websites listed in Annex II, has given prior authorisation in accordance with Article 3b, it shall be prohibited:

2.   For the purposes of point (c) of paragraph 1, “telecommunication or internet monitoring or interception services” means those services that provide, in particular using equipment, technology or software as identified in Annex III, access to and delivery of a subject's incoming and outgoing telecommunications and call- associated data for the purpose of its extraction, decoding, recording, processing, analysis or storing, or any other related activity.

(*2)  Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items (OJ L 134, 29.5.2009, p. 1).’;"

(4)

in Article 4, paragraph 1 is replaced by the following:

‘1.   By way of derogation from Articles 2(1), 3(2), 3a(1) and 3a(4), and subject to Article 5, the competent authorities in the Member States, as indicated in the websites listed in Annex II, may authorise, under such conditions as they deem appropriate:

(5)

the following Articles are inserted:

‘Article 4a

1.   All funds and economic resources belonging to or owned, held or controlled by any natural or legal person, entity or body listed in Annex IV 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 IV.

3.   Annex IV shall include:

4.   Annex IV shall include the grounds for the listing of the persons, entities and bodies concerned.

5.   Annex IV shall also include, where available, information necessary to identify the natural or legal persons, entities and 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 and bodies, such information may include names, place and date of registration, registration number and place of business.

Article 4b

1.   By way of derogation from Article 4a, the competent authorities of the Member States as identified on the websites listed in Annex II, 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:

2.   The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraph 1 within four weeks following the authorisation.

Article 4c

1.   By way of derogation from Article 4a, the competent authorities in the Member States as identified on the websites listed in Annex II, may authorise the release of certain frozen funds or economic resources if the following conditions are met:

2.   The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraph 1 within four weeks of the authorisation.

Article 4d

1.   By way of derogation from Article 4a and provided that a payment by a natural or legal person, entity or body listed in Annex IV 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 IV, 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:

2.   The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraph 1 within four weeks of the authorisation.

3.   Article 4a(2) shall not prevent the crediting of the frozen accounts by financial or credit institutions that receive funds transferred by third parties to 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.

4.   Provided that any such interest, other earnings and payments are frozen in accordance with Article 4a, Article 4a(2) shall not apply to the addition to frozen accounts of:

Article 4e

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

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 4f

1.   The freezing of funds and economic resources or the refusal to make funds or economic resources available, carried out 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 implementing it, or its directors or employees, unless it is proved 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 measures set out in this Regulation.

Article 4g

It shall be prohibited to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent the measures laid down in this Regulation.

Article 4h

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, in particular a claim for extension or payment of a bond, guarantee or indemnity, in particular a financial guarantee or financial indemnity, of whatever form, shall be satisfied, if they are made by:

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 4i

1.   Where the Council decides to subject a natural or legal person, entity or body to the measures referred to in Article 4a, it shall amend Annex IV accordingly.

2.   The Council shall communicate its decision, including the grounds for listing, to the natural or legal person, entity or body referred to in paragraph 1, either directly, if the address is known, or through the publication of a notice, providing such natural or legal person, entity or body with an opportunity to present observations.

3.   Where observations are submitted, or where substantial new evidence is presented, the Council shall review its decision and inform the natural or legal person, entity or body accordingly.

4.   The list in Annex IV shall be reviewed at regular intervals and at least every 12 months.’

(6)

Article 6 is replaced by the following:

‘Article 6

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 concerning:

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.’;

(7)

the text set out in Annex I to this Regulation is added as Annex III;

(8)

the text set out in Annex II to this Regulation is added as Annex IV.