Europa 1 Common commercial policy – Trade with non-member countries – Embargo measures against the Federal Republic of Yugoslavia (Serbia and Montenegro) – Regulation No 990/93 – Measures to detain and confiscate vessels suspected of having breached the prohibition of commercial traffic entering Yugoslav territorial waters – Scope – Vessel flying the flag of a non-member country, belonging to a non-Community company and sailing in international waters at the time of its boarding – Included
(Council Regulation No 990/93, Arts 1(1)(c), 9, 10 and 11)
2 Common commercial policy – Trade with non-member countries – Embargo measures against the Federal Republic of Yugoslavia (Serbia and Montenegro) – Regulation No 990/93 – Prohibitions – Prohibition of commercial traffic entering Yugoslav territorial waters and prohibition of activities designed to promote such entry – Scope
(Council Regulation No 990/93, Art. 1(1)(c) and (d))
3 Common commercial policy – Trade with non-member countries – Embargo measures against the Federal Republic of Yugoslavia (Serbia and Montenegro) – Regulation No 990/93 – Prohibitions – Breach – Penalties – National provision providing for confiscation of the cargo transported by one of the means of transport referred to in the second paragraph of Article 10 of the Regulation – Whether permissible – Conditions – Assessment by the national courts
(EC Treaty, Art. 5; Council Regulation No 990/93, Arts 1 and 10)
4 It follows from the wording of Articles 9 and 10 of Regulation No 990/93 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia that the detention and confiscation measures for which they provide apply to all vessels suspected of having breached the prohibition of entry for commercial purposes into the territorial sea of the Federal Republic of Yugoslavia, with no distinction being drawn on the basis of the vessel’s flag or owner. Further, the application of those measures is not subject to the condition that the breach of the prohibitions set out in the Regulation should take place within Community territory.
The competent authorities of the Member State concerned must therefore, under Article 9 of the Regulation, detain all vessels suspected of having breached the sanctions imposed against the Federal Republic of Yugoslavia, even if they are flying the flag of a non-member country, belong to non-Community nationals or companies, or if the alleged breach of sanctions occurred outside Community territory. Likewise, national authorities may, under the second paragraph of Article 10 of the Regulation, confiscate those vessels and their cargoes once the infringement has been established.
Furthermore, Paragraph 25 of Resolution 820 (1993) of the United Nations Security Council, to which Articles 9 and 10 of the Regulation give effect within the Community, expressly requires all States to detain vessels suspected of violation that are found in their territory and provides that such vessels may, where appropriate, be forfeited to those States.
Since, under Article 11, Regulation No 990/93 applies within the whole territory of the Community, Articles 9 and 10 thereof are applicable once those vessels are within the territory of a Member State and thus under the territorial jurisdiction of that State, even if the alleged infringement occurred outside its territory.
5 Article 1(1)(c) and (d) of Regulation No 990/93 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia prohibits not only the actual entry of commercial traffic into the territorial sea of the Federal Republic of Yugoslavia but also conduct occurring in international waters which gives good reason to believe that the vessel concerned is on course for that territorial sea for the purposes of commercial traffic.
6 A domestic provision which, in the event of an ascertained breach of any of the prohibitions laid down in Article 1 of Regulation No 990/93 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia, prescribes confiscation of the cargo carried by one of the means of transport indicated in the second paragraph of Article 10 of Regulation No 990/93 is compatible with that Regulation, in particular with Article 10 thereof.
With the exception of the Italian and Finnish versions, all the language versions of the second paragraph of Article 10 of the Regulation, which correspond in this regard to the wording of Paragraph 25 of Resolution 820 (1993) of the United Nations Security Council, provide that, when the breach of the Regulation has been established, cargoes may be forfeited to the Member State concerned. The second paragraph of Article 10 of the Regulation cannot on any view be understood as limiting the Member States’ general power under the first paragraph of Article 10 to determine the penalties to be imposed where the provisions of the Regulation are infringed.
Moreover, even if it were to be assumed that the national provision in question introduces a system of strict criminal liability or fails to take into account the degree of involvement of the various traders concerned, it is for the national court to determine whether that penalty is dissuasive, effective and proportionate. In making that determination, the national court must take account, in particular, of the fact that the objective pursued by the Regulation, which is to bring to an end the state of war in the region concerned and the massive violations of human rights and humanitarian international law in the Republic of Bosnia-Herzegovina, is one of fundamental general interest for the international community.
Where a Community regulation does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the EC Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law. For that purpose, while the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive. In this regard, a system of strict criminal liability penalizing breach of a regulation is not in itself incompatible with Community law.
C-177/95, [1997] EUECJ C-177/95, [1997] ECR I-1111
Bailii
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Cited – Oakley Inc v Animal Ltd and others CA 20-Oct-2005
It was argued that the Secretary of State, when implementing the Directive in the 2001 Regulations, had exceeded his powers in preserving provisions of the Registered Designs Act. The judge had held the Seceretary had exceeded his powers. The . .
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Updated: 11 August 2021; Ref: scu.161603