Community
Provisions (Restrictive Measures – Guinea) (Jersey) Order 2010
THE CHIEF
MINISTER, in
pursuance of Article 2 of the European Communities Legislation
(Implementation) (Jersey) Law 1996 and having regard to Council Regulation
(EU) No. 1284/2009 of 22 December 2009 imposing certain specific
restrictive measures in respect of the Republic of Guinea, as amended to 2 April 2010,
orders as follows –[2]
Commencement [see endnotes]
Part 1
Interpretation
1 Interpretation[3]
In this
Order, unless the context otherwise requires –
“Council
Regulation” means Council Regulation (EU) No. 1284/2009 of 22 December 2009
imposing certain specific restrictive measures in respect of the Republic of
Guinea (OJ No. L 346/26, 23.12.2009) as amended[4] up to 16th April 2014;
“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;
“freeze” –
(a) in
relation to economic resources, means prevent their use to obtain funds, goods
or services in any way, including, but not limited to, by selling, hiring or
mortgaging them; and
(b) in
relation to funds, means prevent any move, transfer, alteration, use of, access
to, or dealing with the 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;
“funds” means
financial assets and benefits of every kind, including but not limited
to –
(a) cash,
cheques, claims on money, drafts, money orders and other payment instruments;
(b) deposits
with financial institutions or other entities, balances on accounts, debts and
debt obligations;
(c) publicly
and privately traded securities and debt instruments, including stocks and
shares, certificates representing securities, bonds, notes, warrants,
debentures and derivatives contracts;
(d) interest,
dividends or other income on or value accruing from or generated by assets;
(e) credit,
right of set-off, guarantees, performance bonds or other financial commitments;
(f) letters
of credit, bills of lading, bills of sale; and
(g) documents
evidencing an interest in funds or financial resources;
“listed person”
has the meaning assigned by Article 6.
Part 2[5]
Part 3
Funds and economic resources related to National
Council for Democracy and Development
6 Freezing
of funds and economic resources
(1) In
this Part “listed person” means a natural or legal person, entity
or body listed in Annex II to the Council Regulation.[6]
(2) All
funds and economic resources belonging to, owned, held or controlled by listed persons
shall be frozen.
(3) No
funds or economic resources shall be made available, directly or indirectly, to
or for the benefit of listed persons.
(4) It
is prohibited to participate, knowingly and intentionally, in activities the
object or effect of which is, directly or indirectly, to circumvent the
measures referred to in paragraphs (2) and (3).
(5) Paragraph (3)
does not give rise to liability of any kind on the part of any natural or legal
persons, entities or bodies who make funds or economic resources available, if
at the time of doing so they do not know, and have no reasonable cause to
suspect, that their actions contravene that paragraph.
7 Authorization of release of frozen funds or resources for certain
purposes
By way of derogation from Article 6,
the Minister may authorize the release of particular
frozen funds or economic resources or the making available of particular funds
or economic resources, under such conditions as the Minister deems appropriate,
if the Minister determines that the funds or economic resources concerned
are –
(a) necessary to satisfy
the basic needs of a listed person, and any dependent family members of that
person, including payments for foodstuffs, rent or mortgage, medicines and
medical treatment, taxes, insurance premiums, and public utility charges;
(b) intended exclusively
for payment of reasonable professional fees and 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; or
(d) necessary for
extraordinary expenses.
8 Authorization
of release of frozen funds or resources subject to prior lien or judgment
By way of derogation from Article 6, the Minister may authorize the
release of particular frozen funds or economic resources, if the following
conditions are met –
(a) the
funds or economic resources are the subject of –
(i) a
judicial, administrative or arbitral lien established before the date on which the natural or legal person, entity or body concerned became a
listed person, or
(ii) a
judicial, administrative or arbitral judgment rendered before that date;
(b) the
funds or economic resources will be used exclusively to satisfy claims secured
by such a lien or recognized 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 listed person; and
(d) it
is not contrary to public policy in Jersey to recognize the lien or judgment.
9 Exception
to Article 6 for certain credits to
frozen accounts
(1) Article 6(3)
does not prevent –
(a) a
financial or credit institution in Jersey from crediting a frozen account where
it receives funds transferred by a third party to the account of a listed
person; or
(b) the
addition to a frozen account of –
(i) interest or other
earnings on that account, or
(ii) a
payment due under a contract, agreement or obligation that was concluded or
arose before the natural or legal person, entity or body concerned became a
listed person.
(2) A
financial or credit institution shall without delay inform the Minister if it
credits a frozen account under paragraph (1)(a).
(3) For
the avoidance of doubt, when anything is added or credited under this Article
to a frozen account, it becomes part of that account for the purpose of Article 6(2)
and accordingly it shall then be frozen under that Article.
10 Limitation
of liability for persons complying with this Part
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 Part, 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.
Part 4
information
11 Duty
to supply information
Without prejudice to any
provision of the law of Jersey concerning reporting, confidentiality and
professional secrecy, natural and legal persons, entities and bodies resident
or located in Jersey shall –
(a) supply
immediately to the Minister any information which would facilitate compliance
with this Order, such as information about accounts and amounts frozen in
accordance with Article 6; and
(b) co-operate
with the Minister in any verification of such information.
12 Information[7]
Schedule 2 has
effect in order to facilitate the obtaining, by or on behalf of the Minister,
of information for any purpose in connection with the Council Regulation.
13 Use
and provision of information by Minister
(1) The
Minister shall use information supplied or provided under this Order only for
the purposes described in this Order.
(2) The
Minister may inform the European Commission of the measures taken under this
Order.
(3) The
Minister may supply the European Commission with any other relevant information
at his or her disposal in connection with this Order, in particular information
in respect of violation and enforcement problems and judgments handed down by
any court in Jersey.
(4) The
Minister may –
(a) inform
the European Commission or a competent authority of an authorization granted,
or proposed to be granted, under Article 7 or 8;
(b) for
the purpose of assisting the European Commission or a competent authority to
ensure compliance with the Council Regulation, supply to the European Commission
or authority information supplied or provided under Article 9(2), 11
or 12.
(5) In
paragraph (4) “competent authority” means an authority of a
Member State, for which a website is listed in Annex III to the Council
Regulation.[8]
Part 5
Offences and miscellaneous
14 Offences
(1) A
person is guilty of an offence, and liable to imprisonment for a term of
2 years and to a fine, if that person –
(a) contravenes
any of Articles 6(2), (3) or (4), 9(2) or 11;
(b) intentionally
provides false information, a false document or a false explanation under Article 11
or to any person exercising powers under Schedule 2; or
(c) with
intent to evade Article 11 or Schedule 2, destroys, mutilates,
defaces, secretes or removes any document.[9]
(2) A
person is guilty of an offence, and liable to imprisonment for a term of
3 months and to a fine, if that person contravenes paragraph 1(2) of
Schedule 2.[10]
(3) If
an offence under this Order committed by a limited liability partnership, a
separate limited partnership, any other partnership having separate legal
personality or a body corporate is proved to have been committed with the
consent or connivance of, or to be attributable to any neglect on the part
of –
(a) a
person who is a partner of the partnership, or director, manager, secretary or
other similar officer of the body corporate; or
(b) a
person purporting to act in any such capacity,
the person shall also be
guilty of the offence and liable in the same manner as the partnership or body
corporate to the penalty provided for that offence.[11]
(4) If
the affairs of a body corporate are managed by its members, paragraph (3)
shall apply in relation to acts and defaults of a member in connection with the
member’s functions of management as if the member were a director of the
body corporate.
(5) A
prosecution for an offence under this Order shall not be instituted without the
consent of the Attorney General.
(6) In
relation to an offence against paragraph (1) or (2) –
(a) Article 48
of the Customs and Excise (Jersey)
Law 1999 applies to the arrest of a person for the offence as it applies to
the arrest of a person for an offence under that Law; and
(b) Articles 64
to 67 of that Law apply to the offence, and to penalties and proceedings for
the offence, as those Articles apply in relation to offences, penalties, and
proceedings for offences, under that Law.
15 Delegation
The Minister may, to such
extent and subject to such restrictions and conditions as he or she may think
proper, delegate or authorize the delegation of any of his or her functions
under this Order to any person, or class or description of person, approved by
the Minister.
16 Application
This Order
applies –
(a) to
Jersey, including the territorial sea adjacent to Jersey and Jersey’s
airspace;
(b) on
board any aircraft or vessel under the jurisdiction of Jersey;
(c) to
any legal person, entity or body incorporated or constituted under the law of
Jersey; and
(d) to
any legal person, entity or body in respect of any business done, in whole or
in part, in Jersey.
17 Citation
This Order may be cited as the Community Provisions (Restrictive
Measures – Guinea) (Jersey) Order 2010.
SCHEDULE
1[12]
SCHEDULE 2[13]
(Article 12)
Information
1 Disclosure
of information
(1) The
Minister (or any person authorized by the Minister for that purpose either
generally or in a particular case) may request a person in or resident in
Jersey to –
(a) furnish
to the Minister information; or
(b) produce
to the Minister a document,
in the person’s
possession or control, that the Minister may require for the purpose of
ensuring compliance with the Council Regulation.
(2) A
person shall, within the time and manner specified in the request (or, if no
time has been so specified, within a reasonable time), comply with a request made
pursuant to sub-paragraph (1) unless the person has a reasonable excuse
not to do so.
(3) Nothing
in this paragraph requires a person who has acted as legal adviser for a person
to disclose a privileged communication made to the person in that capacity.
(4) If
a person is convicted by a court of an offence under this Order of failing to
furnish information or to produce a document, the court may make an order requiring
the person, within such period as may be specified in the order, to furnish the
information or produce the document.
(5) The
power conferred by this paragraph to request a person to produce a document
includes the power to take copies of or extracts from a document so produced
and to request the person or, if the person is a body corporate, any other
person who is a present or past officer of, or is employed by, the body
corporate, to provide an explanation of any such document.
2 Restrictions
on disclosure
(1) Information
furnished or a document produced (including any copy or extract made of a
document produced) by a person in pursuance of a request made under this
Schedule must not be disclosed except –
(a) subject
to sub-paragraph (2), with the consent of the person by whom the
information was furnished or the document was produced;
(b) to a
person who would have been empowered under this Schedule to request that it be
furnished or produced or a person holding or acting in an office under or in
the service of the States;
(c) on
the authority of the Minister, to the European Commission or to any of the
competent authorities of the Member States, being the competent authorities listed
in the Council Regulation, for any purpose in connection with that Council
Regulation;
(d) on
the authority of the Minister, to the Jersey Financial Services Commission, for
the purpose of any of its functions, where the Minister believes that the
exercise of such a function may assist in achieving compliance with the Council
Regulation; or
(e) with
a view to the institution of, or otherwise for the purposes of, proceedings for
an offence under this Order.
(2) A
person who has obtained information or is in possession of a document only in
the person’s capacity as a servant or agent of another person may not
give consent for the purposes of sub-paragraph (1)(a) but such consent may
instead be given by a person who is entitled to that information or to
possession of that document in the person’s own right.