Brudd på sanksjoner: når er de en forbrytelse i Nederland?

Breaching an international sanction is a criminal offence in the Netherlands. Under the Sanctions Act 1977 (Sanctiewet 1977) and the Economic Offences Act (Wet op de economische delicten, WED), an intentional breach is a serious offence (misdrijf) punishable by up to six years’ imprisonment, community service or a fine of the fifth category, plus confiscation; a breach without intent is a lesser offence (overtreding) with a lower maximum.

Companies are liable in their own right under Article 51 of the Criminal Code (Wetboek van Strafrecht, Sr), and those who directed the conduct can be prosecuted alongside them. Cases are investigated by the FIOD and Customs (Douane) and prosecuted by the Functioneel Parket of the Public Prosecution Service (OM). For the commercial side, see our article on hva bedrifter må vite om å gjøre forretninger med Russland, Iran og Kina og vår komplett guide til internasjonale og nasjonale straffetiltak.

Which rules make a sanctions breach a criminal offence?

EU sanctions are laid down in Council regulations, which apply directly in every member state from the day they enter into force. EU law leaves the penalty to the member states, and in the Netherlands the Sanctions Act 1977 fills that gap: ministerial sanction regulations designate the rules that must be complied with, and a breach is an economic offence under the WED.

UN sanctions adopted by the Security Council under Chapter VII of the UN Charter reach the Netherlands mainly through EU regulations, and in some cases through national sanction regulations. The same criminal framework then applies.

Hvilke straffer gjelder?

The WED, not the ordinary Criminal Code, sets the penalties: up to six years’ imprisonment, community service or a fifth-category fine for an intentional breach. The amounts of the fine categories are adjusted periodically, so check the current figure in Article 23 Sr.

The additional measures often weigh more than the maximum fine. A court can order confiscation of the goods, deprivation of unlawfully obtained gains (ontneming) and the special economic sanctions of the WED, including the full or partial closure of the business for a fixed period. Background is in our note on økonomisk strafferett.

Who investigates and who prosecutes?

The Functioneel Parket, the OM branch for economic, financial and environmental crime, decides on prosecution. The FIOD (Fiscal Information and Investigation Service) usually investigates, together with Customs; the police and the Royal Netherlands Marechaussee become involved at ports, airports and borders.

An administrative track runs alongside. De Nederlandsche Bank (DNB) and the Dutch Authority for the Financial Markets (AFM) supervise whether banks, trust offices and crypto service providers screen clients against the sanctions lists, freeze assets and report. The trust sector has its own regime under the Den nederlandske tilsynsloven for tillitskontorer, and administrative instruments such as a forelegg for betaling av tvangsbot may be used. The una via principle prevents punishment for the same conduct through both tracks.

When is the company liable, and when is the director?

Under Article 51 Sr the OM can prosecute the company, those who ordered the conduct and those who actually directed it (feitelijk leidinggevers), together or separately. Conduct is attributed to the company when it falls within its sphere: performed by staff, within normal business, useful to the company and accepted by it, as set out by the Supreme Court on 26 April 2016 (ECLI:NL:HR:2016:733).

A director is personally liable if he or she was competent and reasonably obliged to prevent the conduct, failed to do so, and at least knowingly accepted a real chance that it was happening. Conditional intent is enough, so deliberately not asking an obvious question about an end user or a route does not protect anyone. A compliance officer who objected in writing and was overruled is in a very different position from one who signed off without asking.

What conduct is prosecuted in practice?

Four patterns account for most cases. Each of them can also amount to an offence where every single step looks lawful.

• Exporting listed or dual-use goods to a sanctioned destination through an intermediate country, with documents naming a harmless end user.
• Supplying prohibited services, which under the Russia sanctions covers a wide range of IT, consultancy, transport and insurance services.
• Dealing with funds or economic resources of a listed person, including making them available indirectly.
• Circumvention: arrangements whose object or effect is to defeat a prohibition.

The most common technical mistake concerns ownership. Under EU guidance, an asset freeze also covers entities that a listed person owns (50% or more of the shares or voting rights) or controls, and control can exist below 50%. This is not the 25% threshold used to identify the ultimate beneficial owner (UBO) under anti-money laundering law; if your counterparty is half-owned by a listed person, the freeze applies whatever the UBO register says.

Sanctions offences often come with other charges. Payments routed to hide a listed person’s involvement can be money laundering under Articles 420bis to 420quater Sr, often the easier charge to prove; see our veiledning om hvitvasking av penger. False end-user statements and altered shipping documents bring forgery (Article 225 Sr) into play.

What will the EU directive and the new Dutch act change?

Directive (EU) 2024/1226 of 24 April 2024 defines common criminal offences for violating and circumventing EU restrictive measures. It sets minimum levels for maximum penalties, including imprisonment for serious forms and turnover-based fines for companies, and requires member states to criminalise inciting, aiding and attempting these offences.

The Dutch response is the bill for an International Sanctions Measures Act (Wet internationale sanctiemaatregelen), which is to replace the Sanctions Act 1977. It adds an administrative enforcement track, a central reporting point for sanctions signals, a legal basis for information exchange between agencies and wider supervision. Until it enters into force, the Sanctions Act 1977 and the WED remain the operative framework.

What happens if you become a suspect?

A sanctions investigation usually starts with a search or seizure, not a letter. The FIOD arrives with a warrant from the examining magistrate (rechter-commissaris), servers and phones are copied and bank accounts may be seized under criminal law, on top of any freeze under the sanctions regulation.

From that moment you have the right to remain silent and to be assisted by a lawyer. Under administrative supervision there is a duty to cooperate; in a criminal investigation there is not, and the boundary between the two tracks is often decisive. Our overview of the Nederlandsk strafferettssystem forklarer den generelle saksgangen.

Because evidence must be gathered abroad through mutual legal assistance and European Investigation Orders, these cases are slow and often start with a series of proformahøringer. The defence can use that time to ask the examining magistrate to hear witnesses, obtain licence correspondence and test the classification of the goods. See also our articles on grenseoverskridende kriminell etterforskning og utleveringssaker.

Many corporate sanctions cases end in an out-of-court settlement (transactie) with the OM rather than a judgment. For large settlements the OM usually publishes a statement of facts, which banks and counterparties will read.

Hva bør du sjekke som bedrift?

• For every counterparty with a link to a sanctioned country: who owns and controls it, with the date and source of your check.
• Whether your goods are listed or dual-use, decided in the sales process, before any commitment is made.
• Whether your services fall within a services ban, such as IT or consultancy services under the Russia sanctions.
• Red flags: a new intermediary in a neighbouring country, a customer refusing an end-user statement, an unusual payment route or an order split below a threshold.
• Whether your bank or trust office has asked questions you have not yet answered in writing.

What should you check as a director or compliance officer?

• Whether you have the authority and the duty to stop a transaction, which determines your exposure under Article 51 Sr.
• Whether your objections and questions are recorded in writing, with dates.
• Whether an internal investigation is led by a lawyer and kept separate from the people whose conduct is examined.
• Whether a self-report has been reviewed by a lawyer before it is sent, because it can amount to an admission by the company and its directors.

What can we do for you with sanctions enforcement?

Våre advokater i strafferett advise and defend companies, directors and compliance officers in sanctions matters.

• We assess ownership and control of a counterparty against the EU 50% rule and record the assessment.
• We assist you during a FIOD or Customs search and decide with you what must and need not be handed over.
• We conduct a privileged internal investigation and advise on whether and how to self-report.
• We challenge seizures and frozen accounts before the examining magistrate.
• We negotiate with the Functioneel Parket and defend the company and directors in court.
• We coordinate the criminal case with a parallel procedure before DNB or the AFM.

Sammendrag

• Breaching EU or UN sanctions is an economic offence under the Sanctions Act 1977 and the WED.
• Intentional breaches carry up to six years’ imprisonment or a fifth-category fine, plus confiscation and closure of the business.
• Companies and those who directed the conduct can both be prosecuted (Article 51 Sr).
• An asset freeze covers entities 50% or more owned or controlled by a listed person, regardless of the 25% UBO threshold.
• Directive (EU) 2024/1226 harmonises sanctions offences; a new Dutch International Sanctions Measures Act is pending.

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