by a third country Regulations, 2014

L.N. 280 of 2014

NATIONAL INTEREST (ENABLING POWERS) ACT

(CAP. 365)

Enforcement of European Union Sanctions protecting against the

effects of the extra-territorial application of legislation adopted

by a third country Regulations, 2014

IN exercise of the powers conferred by article 3(2) of the

National Interest (Enabling Powers) Act, the Prime Minister has

made the following regulations:-

The title of these regulations is the Enforcement of

European Union Sanctions protecting against the effects of the extra-

territorial application of legislation adopted by a third country

Regulations, 2014.

(Regulation 3)

COUNCIL REGULATION (EC) No 2271/96

of 22 November 1996

protecting against the effects of the extra-territorial application of

legislation adopted by a third country, and actions based thereon

or resulting therefrom

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular

Articles 73c, 113 and 235 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Whereas the objectives of the Community include contributing to the harmonious

development of world trade and to the progressive abolition of restrictions on international

trade;

Whereas the Community endeavours to achieve to the greatest extent possible the

objective of free movement of capital between Member States and third countries,

including the removal of any restrictions on direct investment - including investment in

real estate - establishment, the provision of financial services or the admission of

securities to capital markets;

Whereas a third country has enacted certain laws, regulations, and other legislative

instruments which purport to regulate activities of natural and legal persons under the

jurisdiction of the Member State;

Whereas by their extra-territorial application such laws, regulations and other

legislative instruments violate international law and impede the attainment of the

aforementioned objectives;

Whereas such laws, including regulations and other legislative instruments, and

actions based thereon or resulting therefrom affect or are likely to affect the established

legal order and have adverse effects on the interests of the Community and the interests of

natural and legal persons exercising rights under the Treaty establishing the European

Community;

Whereas, under these exceptional circumstances, it is necessary to take action at

Community level to protect the established legal order, the interests of the Community and

the interests of the said natural and legal persons, in particular by removing, neutralising,

blocking or otherwise countering the effects of the foreign legislation concerned;

Whereas the request to supply information under this Regulation does not preclude a

Member State from requiring information of the same kind to be provided to the

authorities of that State;

Whereas the Council has adopted the Joint Action 96/668/CFSP of 22 November

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1996 (2) inorder to ensure that the Member States take the necessary measures to protect

those natural and legal persons whose interests are affected by the aforementioned laws

and actions based thereon, insofar as those interests are not protected by this Regulation;

Whereas the Commission, in the implementation of this Regulation, should be

assisted by a committee composed of representatives of the Member States;

Whereas the actions provided for in this Regulation are necessary to attain

objectives of the Treaty establishing the European Community;

Whereas for the adoption of certain provision s of this Regulation the Treaty does

not provide powers other than those of Article 235,

HAS ADOPTED THIS REGULATION

Article 1

This Regulation provides protection against and counteracts the effects of the extra-

territorial application of the laws specified in the Annex of this Regulation, including

regulations and other legislative instruments, and of actions based thereon or resulting

therefrom, where such application affects the interests of persons, referred to in Article 11,

engaging in international trade and/or the movement of capital and related commercial

activities between the Community and third countries.

Acting in accordance with the relevant provisions of the Treaty and notwithstanding

the provisions of Article 7(c), the Council may add or delete laws to or from the Annex to

this Regulation.

Article 2

Where the economic and/or financial interests of any person referred to inArticle 11

are affected, directly or indirectly, by the laws specified in the Annex or by actions based

thereon or resulting therefrom, that person shall inform the Commission accordingly

within 30 days from the date on which it obtained such information; insofar as the interests

of a legal person are affected, this obligation applies to the directors, managers and other

persons with management responsibilities (1).

At the request of the Commission, such person shall provide all information relevant

for the purposes of this Regulation in accordance with the request from the Commission

within 30 days from the date of the request.

All information shall be submitted to the Commission either directly or through the

competent authorities of the Member States. Should the information be submitted directly

to the Commission, the Commission will inform immediately the competent authorities of

the Member States in which the person who gave the information is resident or

incorporated.

Article 3

All information supplied in accordance with Article 2 shall only be used for the

purposes for which it was provided.

Information which is by nature confidential or which is provided on a confidential

basis shall be covered by the obligation of professional secrecy. It shall not be disclosed by

the Commission without the express permission of the person providing it.

Communication of such information shall be permitted where the Commission is

obliged or authorized to do so, in particular in connection with legal proceedings. Such

communication must take into account the legitimate interests of the person concerned

that his or her business secrets should not be divulged.

This Article shall not preclude the disclosure of general information by the

Commission. Such disclosure shall not be permitted if this is incompatible with the

original purpose of such information.

In the event of a breach of confidentiality, the originator of the information shall be

entitled to obtain that it be deleted, disregarded or rectified, as the case may be.

Article 4

No judgment of a court or tribunal and no decision of an administrative authority

located outside the Community giving effect, directly or indirectly, to the laws specified in

the Annex or to actions based thereon or resulting there from, shall be recognized or be

enforceable in any manner.

Article 5

No person referred to in Article 11 shall comply, whether directly or through a

subsidiary or other intermediary person, actively or by deliberate omission, with any

requirement or prohibition, including requests of foreign courts, based on or resulting,

directly or indirectly, from the laws specified in the Annex or from actions based thereon

or resulting therefrom.

Persons may be authorized, in accordance with the procedures provided in Articles 7

and 8, to comply fully or partially to the extent that non-compliance would seriously

damage their interests or those of the Community. The criteria for the application of this

provision shall be established in accordance with the procedure set out in Article 8. When

there is sufficient evidence that non-compliance would cause serious damage to a natural

or legal person, the Commission shall expeditiously submit to the committee referred to in

Article 8 a draft of the appropriate measures to be taken under the terms of the Regulation.

Article 6

Any person referred to in Article 11, who is engaging in an activity referred to in

Article 1 shall be entitled to recover any damages, including legal costs, caused to that

person by the application of the laws specified in the Annex or by actions based thereon or

resulting therefrom.

Such recovery may be obtained from the natural or legal person or any other entity

causing the damages or from any person acting on its behalf or intermediary.

The Brussels Convention of 27 September 1968 on jurisdiction and the enforcement

of judgments in civil and commercial matters shall apply to proceedings brought and

judgments given under this Article. Recovery may be obtained on the basis of the

provisions of Sections 2 to 6 of Title II of that Convention, as well as, in accordance with

Article 57(3) of that Convention, through judicial proceedings instituted in the Courts of

any Member State where that person, entity, person acting on its behalf or intermediary

holds assets.

Without prejudice to other means available and in accordance with applicable law,

the recovery could take the form of seizure and sale of assets held by those persons,

entities, persons acting on their behalf or intermediaries within the Community, including

shares held in a legal person incorporated within the Community.

Article 7

For the implementation of this Regulation the Commission shall

(a)

inform the European Parliament and the Council immediately and

fully of the effects of the laws, regulations and other legislative instruments and

ensuing actions mentioned in Article 1, on the basis of the information obtained

under this Regulation, and make regularly a full public report thereon;

(b)

grant authorization under the conditions set forth in Article 5 and,

when laying down the time limits with regard to the delivery by the Committee of its

opinion, take fully into account the time limits which have to be complied with by

the persons which are to be subject of an authorization;

(c)

add or delete, where appropriate, references to regulations or other

legislative instruments deriving from the laws specified in the Annex, and falling

under the scope of this Regulation;

(d)

publish a notice in the Official Journal of the European Communities

on the judgments and decisions to which Articles 4 and 6 apply;

(e) publish in the Official Journal of the European Communities the names and

addresses of the competent authorities of the Member States referred to in Article 2.

Article 8

1. For the purposes of the application of Article 7(b) and (c), the Commission

shall be assisted by a committee.

2. Where reference is made to this Article, Articles 5 and 7 of Decision1999/

468/EC shall apply.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at two

weeks.

3. The committee shall adopt its rules of procedure.

Article 9

Each Member State shall determine the sanctions to be imposed in the event of

breach of any relevant provisions of this Regulation. Such sanctions must be effective,

proportional and dissuasive.

Article 10

The Commission and the Member States shall inform each other of the measures

taken under this Regulation and of all other relevant information pertaining to this

Regulation.

Article 11

This Regulation shall apply to

1. any natural person being a resident in the Community and a national

of a Member State,

2. any legal person incorporated within the Community,

3. any natural or legal person referred to in Article 1 (2) of Regulation (EEC)

No 4055/86,

4. any other natural person being a resident in the Community, unless

that person is in the country of which he is a national,

5. any other natural person within the Community, including its

territorial waters and air space and in any aircraft or on any vessel under the

jurisdiction or control of a Member State, acting in a professional capacity.

Article 12

This Regulation shall enter into force on the day of its publication in the Official

Journal of the European Communities. This Regulation shall be binding in its entirety and

directly applicable In all Member States.

ANNEX

LAWS, REGULATIONS AND OTHER LEGISLATIVE INSTRUMENTS ( * )

referred to in Article 1

COUNTRY: UNITED STATES OF AMERICA

ACTS

1. ‘National Defense Authorization Act for Fiscal Year 1993’, Title XVII ‘Cuban

Democracy Act 1992’, sections 1704 and 1706

Required compliance

The requirements are consolidated in Title I of the ‘Cuban Liberty and Democratic

Solidarity Act of 1996’, see below.

Possible damages to EU interests

The liabilities incurred are now incorporated within the ‘Cuban Liberty and

* Further information with regard to the aforementioned laws and regulations can be

obtained from the European Commission, Directorate General I.E.3, Rue de la Loi/

Wetstraat 200, B-1049 Brussels (fax: (32-2) 295 65 05).

Democratic Solidarity Act of 1996’, see below.

2. ‘Cuban Liberty and Democratic Solidarity Act of 1996’

Title I

Required compliance

To comply with the economic and financial embargo concerning Cuba by the USA,

by, inter alia, not exporting to the USA any goods or services of Cuban origin or

containing materials or goods originating in Cuba either directly or through third

countries, dealing in merchandise that is or has been located in or transported from or

through Cuba, re-exporting to the USA sugar originating in Cuba without notification by

the competent national authority of the exporter or importing into the USA sugar products

without assurance that those products are not products of Cuba, freezing Cuban assets, and

financial dealings with Cuba.

Possible damages to EU interests

Prohibition to load or unload freight from a vessel in any place in the USA or to

enter a USA port; refusal to import any goods or services originating in Cuba and to

import into Cuba goods or services originating in the USA, blocking of financial dealings

involving Cuba.

Title III and Title IV

Required compliance

To terminate ‘trafficking’ in property, formerly owned by US persons (including

Cubans who have obtained US citizenship) and expropriated by the Cuban regime.

(Trafficking includes: use, sale, transfer, control, management and other activities to the

benefit of a person).

Possible damages to EU interests

Legal proceedings in the USA, based upon liability already accruing, against EU

citizens or companies involved in trafficking, leading to judgments/decisions to pay

(multiple) compensation to the USA party. Refusal of entry into the USA for persons

involved in trafficking, including the spouses, minor children and agents thereof.

3. ‘Iran and Libya Sanctions Act of 1996’

Required compliance

Not to invest in Iran or Libya any amount greater than USD 40 million during a

period of 12 months that directly and significantly contributes to the enhancement of the

Iranian or Libyan ability to develop their petroleum resources. (Investment covering the

entering into a contract for the said development, or the guaranteeing of it, or the profiting

therefrom or the purchase of a share of ownership therein.)

NB: Investments under contracts existing before 5 August 1996 are exempted.

Respect of embargo concerning Libya established by Resolutions 748 (1992) and

883 (1993) of the Security Council of the United Nations ( * ).

B 3648 Possible damages to EU interests

Measures taken by the US President to limit imports

into USA or procurement to

* ).

(1993)

of the Security

Council as of primary

the United

Nations

or as ( repository

USA,

prohibition

of designation

dealer

of USA Government

funds, denial of access to loans from USA financial institutions, export restrictions by

Possible damages to EU interests

USA, or refusal of assistance by EXIM-Bank.

Measures taken by the US President to limit imports into USA or procurement to

REGULATIONS

USA, prohibition of designation as primary dealer or as repository of USA Government

funds, (Code

denial of of Federal

access Regulations)

to loans from Ch.

USA

V financial

institutions,

export

— restrictions

by

(7-1-95 edition)

Part 515

Cuban Assets

USA,

or Regulations,

refusal of assistance

by (Prohibitions),

EXIM-Bank. E (Licenses, Authorizations and Statements

Control

subpart B

of Licensing Policy) and G (Penalties)

REGULATIONS

Required compliance

(Code of Federal Regulations) Ch. V (7-1-95 edition) Part 515 — Cuban Assets

Control

Regulations,

subpart

B (Prohibitions),

E (Licenses,

Authorizations

and Democratic

Statements

The

prohibitions

are consolidated

in Title

I of the ‘Cuban

Liberty and

of

Licensing

Act Policy)

and see

G (Penalties)

Solidarity

of 1996’,

above. Furthermore, requires the obtaining of licences and/or

authorizations in respect of economic activities concerning Cuba.

Required compliance

Possible damages to EU interests

The prohibitions are consolidated in Title I of the ‘Cuban Liberty and Democratic

Solidarity

Act

of 1996’, imprisonment

see above. Furthermore,

requires the obtaining of licences and/or

Fines,

forfeiture,

in cases of violation.

authorizations in respect of economic activities concerning Cuba.

Possible damages to EU interests

Fines, forfeiture, imprisonment in cases of violation.

* See Community implementation of those Resolutions through Council Regulation (EC)

No 3274/93 (OJ No L 295, 30. 11. 1993, p. 1).

* See Community implementation of those Resolutions through Council Regulation (EC)

No 3274/93 (OJ No L 295, 30. 11. 1993, p. 1).

€0.81

In these regulations, unless the context otherwise requires -

"the Act" means the National Interest (Enabling Powers) Act;

"the Council Regulation" means the Council Regulation referred

to in regulation 3, any amendment thereto and any repealing

Regulation;

"Monitoring Board" means the Board established under

regulation 2 of the Sanctions (Monitoring Board) Regulations;

"the Treaty" means the Treaty referred to in article 2 of the

European Union Act.

These regulations apply to European Council Regulation

(EC) No. 2271 of 22 November 1996, protecting against the effects of

the extra-territorial application of legislation adopted by a third

country, and actions based thereon or resulting therefrom (as

subsequently amended), which text is contained in the Schedule to

these regulations.

For the purposes of article 3 of the European Union Act,

the Council Regulation is binding in its entirety on Malta and shall be

part of the domestic law thereof under the conditions laid down in the

Treaty.

(1)

Where any provision of any regulation made under

the Act requires any person or any other entity to carry out the

identification of funds or assets belonging to or in the possession of

persons or entities as may be identified or identifiable under these

regulations, or the freezing or blocking of such funds or assets, such

person or entity shall without delay notify in writing any relevant

information it may have regarding persons, entities, assets or funds

affected by these regulations to the Monitoring Board, or to such

other public authority as may be prescribed by any other law.

(2) The disclosure of any information within the terms and

requirements of this regulation shall not constitute a breach of the

Professional Secrecy Act, where applicable, or of any other Cap. 377.

confidentiality obligation arising from a contract or any other law.

(3) Whosoever fails to abide by the provisions of sub-

regulation (1) shall be guilty of an offence as is referred to in article 4

of the Criminal Code.

(1)

Where an offence against any provision of the Corporate

Council Regulation to which these regulations apply, or against these liability.

regulations, is committed by a body of persons, whether corporate or

unincorporate, every person who, at the time of the commission of the

offence, was a director, manager, secretary or other similar officer of

such body or association, or was purporting to act in any such

capacity, shall be guilty of that offence unless he proves that the

offence was committed without his knowledge and that he exercised

all due diligence to prevent the commission of the offence.

(2) Where the person found guilty of an offence under these

regulations is an officer of a body corporate as is referred to in article

121D of the Criminal Code or is a person having a power of Cap. 9.

representation or having such authority as is referred to in that article

and the offence of which that person was found guilty was committed

for the benefit, in part or in whole, of that body corporate, the said

person shall for the purposes of these regulations be deemed to be

vested with the legal representation of the same body corporate which

shall be liable to the payment of a fine (multa) of not less than five

thousand euro (€5,000) and not more than one hundred and sixteen

thousand four hundred and sixty-eight euro (€116,468).

Any person who commits an offence against any provision Penalty.

of the Council Regulation to which these regulations apply, or against

these regulations shall, on conviction, be liable to imprisonment for a

term from twelve months to five years or to a fine (multa) not

exceeding one hundred and sixteen thousand four hundred and sixty-

eight euro (€116,468), or to both such imprisonment and fine.

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