Background to the dispute
1 In its Common Position 2002/145/CFSP of 18 February 2002 concerning restrictive measures against Zimbabwe (OJ 2002 L 50, p. 1), adopted on the basis of Article 15 EU, the Council of the European Union expressed its serious concern about the situation in Zimbabwe, in particular the serious infringements, committed by the Government of the Republic of Zimbabwe, of human rights and specifically of freedom of opinion, freedom of association and freedom of peaceful assembly. The Council therefore imposed restrictive measures for a renewable period of 12 months, to be kept under constant review.
2 Council Common Position 2004/161/CFSP of 19 February 2004, renewing restrictive measures against Zimbabwe (OJ 2004 L 50, p. 66), provided for the renewal of the restrictive measures established by Common Position 2002/145. Article 4(1) of Common Position 2004/161, as amended by Article 1(1) of Council Common Position 2008/632/CFSP of 31 July 2008 amending Common Position 2004/161 (OJ 2008 L 205, p. 53), stated that ‘Member States [were to] take the measures necessary to prevent the entry into, or transit through, their territories of members of the Government of [the Republic of] Zimbabwe and of physical persons associated with them, as well as of other physical persons whose activities seriously [undermined] democracy, respect for human rights and the rule of law in Zimbabwe’ and that ‘the individuals referred to in [that] paragraph [were] listed in the Annex’. Article 5(1) of Common Position 2004/161, as amended by Article 1(5) of Common Position 2008/632, provided that ‘all funds and economic resources belonging to individual members of the Government of [the Republic of] Zimbabwe or to any natural or legal persons, entities or bodies associated with them, or belonging to any other natural or legal persons whose activities seriously [undermined] democracy, respect for human rights and the rule of law in Zimbabwe, [were to] be frozen’ and that ‘the persons and entities referred to in [that] paragraph [were] listed in the Annex’. Common Position 2004/161, as amended, was subsequently extended until 20 February 2010 by Council Common Position 2009/68/CFSP of 26 January 2009 renewing restrictive measures against Zimbabwe (OJ 2009 L 23, p. 43), and then, until 20 February 2011, by Council Decision 2010/92/CFSP of 15 February 2010 extending restrictive measures against Zimbabwe (OJ 2010 L 41, p. 6). Articles 4(1) and 5(1) of Council Decision 2011/101/CFSP of 15 February 2011 concerning restrictive measures against Zimbabwe (OJ 2011 L 42, p. 6), which repealed Common Position 2004/161 and was applicable until 20 February 2012, laid down measures identical to those in Articles 4(1) and 5(1) of Common Position 2004/161.
3 Council Regulation (EC) No 314/2004 of 19 February 2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2004 L 55, p. 1) was adopted, as stated in recital 5 thereof, to implement the restrictive measures provided for by Common Position 2004/161 in so far as they fall within the scope of the EC Treaty. It provided inter alia, in Article 6(1), that the funds and economic resources belonging to members of the Government of the Republic of Zimbabwe and to any natural or legal persons, entities or bodies associated with them as listed in Annex III to that regulation were to be frozen. Article 11(b) of that regulation states that the Commission of the European Communities was to be empowered to amend Annex III to that regulation on the basis of decisions taken in respect of the Annex to Common Position 2004/161.
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