Sanctions & Export Controls: New EU-sanctions for Belarus, 3 Sanction-related EU-Opinions and New Chinese Anti-Foreign Sanctions Law

In May and June 2021, the conclusions of the Dutch Prosecutor General of the Supreme Court and the ruling of the Dutch Supreme Court itself were published in a Wwft-related case. Also, the amended General Guideline for the Wwft (“Wwft-Guideline”) was published for consultation. At a European level, the EU decided to strengthen the existing restrictive measures in view of the situation in Belarus and introduced a ban on overflight of EU airspace and on access to EU airports by Belarusian carriers. Also in Europe, the Commission published an Opinion on the interpretation of “frozen funds”. In China, the Anti-Foreign Sanctions Law was adopted. This, and more, in this newsletter.

1. The Netherlands

  • Netherlands (Wwft) – On 25 May 2021, the Supreme Court of the Netherlands ruled in a criminal law case concerning ‘de facto leading’ of intentional violations of the Dutch Money Laundering and Terrorist Financing Prevention Act (“Wwft”). In this case, the District Court of Amsterdam (d.d. 23 October 2018[1]) and the Court of Appeal of Amsterdam (d.d. 3 July 2020) both ruled that a car dealer had intentionally and repeatedly violated the duty to report unusual transactions and had failed to perform customer due diligence pursuant to the Wwft. The car dealer was the director and sole shareholder of a company specialized in trade and repair of passenger cars, light commercial vehicles and motorbikes. In 2016, a Wwft-related investigation took place at the company. One of the conclusions of this investigation was that large sums of cash (EUR 25,000 or more per transaction) were used in the sales of five vehicles. These unusual transactions had not been reported, amounting to a violation of the Dutch Economic Offences Act (Wet op de Economische Delicten / WED). The car dealer defended himself by saying that he had hired an accountant, that they had both agreed that the accountant would be responsible for reporting unusual transactions, and that the accountant had reported unusual transactions on behalf of the car dealer in the past. The Court of Appeal of Amsterdam ruled that there was no proof of any such agreement, as the accountant had denied that these specific agreements were made. The Court of Appeal ruled that the existence of prior reporting did not justify the car dealer assuming that the accountant would (continue to) do the reporting. The car dealer filed an appeal before the Supreme Court, arguing that he had not intentionally violated these Wwft provisions and that the Court of Appeal of Amsterdam did not sufficient motivate its decision. According to the Prosecutor General (“PG”) of the Dutch Supreme Court (d.d. 30 March 2021), the ruling of the Court of Appeal that the suspect at least knowingly accepted the significant chance that the unusual transactions were not being reported was sufficiently motivated. The PG took into account that an “explicit agreement” between the car dealer and the accountant with regard to the reporting of unusual transactions had not been established. On 25 May 2021, the Supreme Court dismissed the appeal as lacking substantive grounds (Art. 80 Judicial Organization Act), as the complaints of the car dealer could not lead to the annulment of that judgment and the appeal did not raise any new issues of legal importance.

  • Netherlands (Wwft) – On 7 June 2021, the General Guideline for the Wwft (“Wwft-Guideline”) was published for consultation. Due to inter alia, the implementation of the amended Fourth Anti-Money Laundering Directive ((EU) 2018/843), the Wwft-Guideline needed to be amended. With this implementation, providers of services with virtual currencies have been brought under the scope of the Wwft and measures must taken with regard to high-risk countries, such as additional enhanced customer due diligence. Moreover, the possibilities of information exchange between Wwft-supervisors and certain other parties have been increased. In addition, rules have been adopted regarding the establishment of a banking data referral portal (“verwijzingsportaal bankgegevens”) and a register for Ultimate Beneficial Owners (”UBO’s”) has been established. The suggested amendments will be presented for consultation until 5 July 2021.

2. European Union & United Kingdom

a. European Union

  • EU / China – On 20 May 2021, the European Parliament passed a non-binding resolution on Chinese countersanctions against the Subcommittee on Human Rights and other European entities and individuals. The Chinese Government’s decision to impose counter-sanctions was in response to the European Council’s decision of 22 March 2021 to impose restrictive measures on four Chinese individuals and a Chinese entity. The European Parliament has held that the Chinese retaliatory sanctions of 22 March 2021 constitute an attack on European democracy and a major step backwards in EU-China relations.

    Until the Chinese authorities lift the countersanctions, any consideration of (ratification of) the EU-China Comprehensive Agreement on Investment (see press release European Commission d.d. 30 December 2020) will be put on hold. According to European Commission President Ursula von der Leyen, this agreement represents an important milestone in the EU-China trade relations.

  • EU / Belarus – During a special meeting on 24-25 May 2021, the European Commission exchanged views on additional measures to be taken in relation to the current situation in Belarus. The special meeting was initiated after the Belarusian authorities unjustifiably forced a civilian Ryanair flight to land in Minsk, Belarus, to arrest independent journalist Roman Pratasevich and his partner Sofia Sapega on 23 May 2021. Pratasevich was listed on Belarus’s list of individuals involved in terrorism and riots, because of the key role he played in the opposition of the 2020 presidential elections of Belarus. On 24 May 2021, EU High Representative Josep Borrell declared that this coercive act endangered the safety of more than 100 passengers and crew members. The EU, together with the United Kingdom (“UK”), hold President Lukashenko accountable for these illegal actions by the Belarusian authorities.

    The Council has demanded the immediate release of Pratasevich and Sapega and urgent investigation of this incident by the International Civil Aviation Organization. It also demanded a ban on the overflight of Belarus by EU airspace and on access to EU airports by Belarusian carriers, by way of an EU Council decision on 4 June 2021. Moreover, the Council invited Member States to adopt additional listing of persons and entities (without mentioning specific names) based on the relevant sanctions framework and calls to adopt further targeted economic sanctions without delay. Other restrictive measures imposed in 2020 against individuals, companies and entities in Belarus, following the unfair presidential elections of August 2020 include: a ban on the export of arms and related material to Belarus, the freezing of assets and the probation to make funds available to those listed, travel restrictions on listed individuals and restrictions on export to Belarus of equipment which could be used for internal repression.

  • EU – In May and June 2021, the European Commission published several Opinions. In these Opinions, the European Commission answered questions that were put forward by national competent authorities (“NCAs”). Even though these Opinions are non-binding, they provide guidance for a uniform implementation of EU law and are thus likely to be followed by the NCAs of Member States:

    • EU / Libya, Syria – On 27 May 2021, the Opinion on changes to the features of frozen funds, in relation to Libya and Syria, was published. This Opinion concerns the interpretation of the notion of “frozen funds” and its implications. One of the questions in this Opinion concerns a compartment of an EU investment fund, where a bank that is based in the EU holds a participation on behalf of an entity listed pursuant to Council Regulation (EU) 2016/44 (“Libya Regulation 2016”). The NCA asked whether the liquidation of that compartment by the managing investment company, followed by the freezing of the proceeds attributable to the listed entity in a segregated account at the EU-based bank, would be compatible with Libya Regulation 2016 (p. 1). One of the main conclusions of this Opinion is that a change in the character of funds frozen pursuant to the Libya Regulation 2016 would be incompatible with Libya Regulation 2016, if it enabled the funds to be used by anyone at any time while the EU restrictive measures are in force. The change of character will also be incompatible with Libya Regulation 2016, if it had the objective or effect of circumventing the asset freeze. It falls within the scope of the NCA to verify whether the actions resulting in a change in the character of funds frozen would not result in enabling their use or in the circumvention of the asset freeze (p. 2). The same applies for a change of the location of an account frozen pursuant to Council Regulation (EU) 36/2012 from a Member State to the UK. This implies that EU operators must take measures to avoid such incompatibility, considering that on account of Brexit, the respective policies of the EU and the UK as to restrictive measures may differ, allowing the use of the transferred funds and the circumvention of the Syria Regulation.

    • EU / Central African Republic – On 2 June 2021, the European Commission published an Opinion regarding the request from a NCA concerning the release of frozen funds by way of enforcing a financial guarantee under Council Regulation (EU) No 224/2014 (“CAR Regulation 2014”). The referral of the NCA concerned a request by an EU-incorporated financial institution to unfreeze certain funds of a Designated Person, in order to enforce a guarantee provided by the Designated Person to that financial institution. The guarantee agreement in question predated the listing of the Designated Person pursuant to CAR Regulation 2014 (p. 2). The Commission concludes that the execution against the frozen funds of a Designated Person of a guarantee stipulated by this Designated Person prior to its listing amounts to a “payment” according to Article 9[2] CAR Regulation 2014 (p. 5). When all the conditions of Article 9 CAR Regulation are fulfilled, the guarantee can be executed also without the consent of the Designated Person or against the Designated Person (p. 5). The Commission considers that Article 9(a) CAR Regulation warrants a broader interpretation and that the execution of the payment under a contract should not be made conditional on the consent of the Designated Person. NCAs can determine if these conditions are fulfilled. In ascertaining whether the payment of the guarantee is due under a prior contract or arises from a prior obligation, the NCA may namely consider judicial, administrative or arbitral judgments, decisions and awards rendered after the listing of the Designated Person (p. 5). The NCA can accompany the authorisation with the conditions that it deems appropriate to ensure that the authorised actions do not frustrate or circumvent the restrictive measures in accordance with Article 12 CAR Regulation 2014 (p. 5).

    • EU / Ukraine – On 8 June 2021, the Opinion on the application of financial sanctions in Council Regulation (EU) No 269/2014 (territorial integrity, sovereignty and independence of Ukraine) (“Ukraine Regulation 2014”) was published. The NCA submitted different questions, such as: (1) “Based on the information provided and information available from open-sources, can it be concluded that the Designated Person controls Entity A?” and (2) “If yes, does the Regulation prohibit an EU operator from making payments to the EU Subsidiary controlled by Entity A for purchasing products originating from Entity A? And does it is also prohibit EU operators from making payments in favour of non-EU entities acting as Third-Country Intermediaries for products of Entity A?” The Commission concluded that if control by the Designated Person over Entity A is established (based on Commission’s criteria[3]), making payments to the EU subsidiary controlled by Entity A amounts to making them available to Entity A – unless it can be reasonably determined, on a case-by-case basis using a risk-based approach, that the funds or economic resources will not be used by or be for the benefit of that Designated Person. To the extent that Entity A is controlled by the Designated Person, the payments can be considered indirectly made available to the Designated Person or for the benefit of the Designated Person (p. 7). Payments in favour of Third-Country Intermediaries for products originating from Entity A can be considered as making funds indirectly available to the designated person, given that (i) the Third-Country Intermediaries have provided consideration to Entity A in exchange for the goods, and (ii) the Entity is controlled by the Designated Person, hence it is presumed to channel to or use the funds and economic resources for the benefit of the latter. Such payments are therefore in principle prohibited. EU banks must apply the appropriate due diligence procedures to avoid that a payment made to Entity A could result in indirectly making available funds or economic resources to or for the benefit of the Designated Person (p. 7).

  • EU / Dual-Use Regulation Recast – On 11 June 2021, the EU published the new Dual-Use Regulation (EU) 2021/821 in the Official Journal. This new regulatory framework provides the EU with the tools to heighten controls on emerging technologies, address risks to global security and human rights and enhance EU-level coordination and export controls. Our article describes how the amended Regulation came into being, what it sets out to achieve, what it adds and what the major takeaways for businesses are. The Regulation will enter into force 90 days after publication in the Official Journal, on 9 September 2021.

b. United Kingdom

  • UK, US, Canada / Myanmar – On 17 May 2021, the UK, the United States of America (“US”) and Canada announced new sanctions against Myanmar’s state-owned gemstone company, Myanmar Gems Enterprise (“MGE”). The listing of this company relates to its involvement in Myanmar’s military regime and gem trade – as a multi-billion-dollar business – being a key source of funding for Myanmar’s military regime. The sanctions include an asset freeze, which prevents any person or entity from engaging in any activity involving funds or economic resources owned or controlled by the MGE. It further prohibits any person or entity to make funds available to MGE.

    The UK designated senior military officers and their economic interests earlier this year following February’s military coup, which overthrew the democratically elected civilian government and detained politicians, journalists and human rights defenders. The sanctions against MGE are enforced with immediate effect and are the first new sanctions against Myanmar’s military regime since the UK government declared the Myanmar (Sanctions) Regulations 2021 effective on 29 April 2021. The UK Myanmar sanctions discourage actions and policies which oppress the rule of law and the civilian population in Myanmar. The individuals designated or specified under this regime are included on the UK’s Sanctions List pursuant to the Sanctions Act. The sanctions against MGE follow recent G7 and Association of Southeast Asian Nations meetings, at which the international community reaffirmed its unified opposition to the actions of the military regime in Myanmar.  

3. United States of America

  • US / Sudan – On 20 May 2021, the US Office of Foreign Assets Control (“OFAC”) amended the OFAC Terrorism List Governments Sanctions Regulations with regard to Sudan. OFAC removed its references to the Government of Sudan and to Sudanese nationals from two different sections:
    • Section 505: Certain transactions to stipends and scholarships authorized;
    • Section 506: Authorizing Certain Transactions Pursuant to the Trade Sanctions Reform and Export Enhancement Act of 2000.

      The country has been internationally isolated by these designations, links to militants, including terrorism group al-Qaeda under its former Islamist regime. Various comprehensive trade sanctions have been imposed with respect to Sudan, including the sanction to block all property and interest in property of the Government of Sudan in the US or within the possession of control of US persons.

      Gradually, the 1998 Sudanese Sanctions Regulations were amended and finally replaced in 2017. As a result of Sudan’s State Sponsor of Terrorism-status, an OFAC authorization was at that time still required for certain (re)exports to Sudan of agricultural commodities, medicine, and medical devices. Since the Government of Sudan has not supported any international acts of terrorism in the previous six-month period and has given assurances that it will not support international acts of terrorism in the future, the US government formally rescinded Sudan’s designation as a State Sponsor of Terrorism as of 14 December 2020.

4. Around the Globe

  • China – On 10 June 2021, China adopted the Anti-Foreign Sanctions Law. The main purpose of the Anti-Foreign Sanctions Law is to create a legal framework for China to block so-called “discriminatorily restrictive measures” imposed by foreign countries against Chinese individuals and entities from suffering the damage resulting from these sanctions. According to Chinese legal experts, the Anti-Foreign Sanctions Law will also “offer sufficient legal foundation for taking an equal position with the West by imposing necessary countermeasures”. The countermeasures that can be imposed on individuals and entities that have taken discriminatory measures against Chinese citizens and organizations based on the Anti-Foreign Sanctions Law, can be expanded to the spouse and relatives of a listed individual, and to any organisations that are led by the targeted individual or operated by the listed individual. Countermeasures listed include freezing measures, restricting cooperation and relevant transactions, refusing to issue visas, denying entry, and even deportation.

  • Iran – On 19 June 2021, Iran announced that Ebrahim Raisi has been elected as the new president of Iran. According to news agency Reuters, Raisi is a hard-line judge who is under US secondary sanctions for human rights abuses (since 4 November 2019). The New York Times states that for US President Biden, Raisi may be the key to restoring the nuclear deal. According to the New York Times, the supreme leader of Iran (Ayatollah Ali Khamenei) wants to restore a nuclear agreement with the West — which former US President Trump decided to put an end to — in order to lift the sanctions that have kept Iranian oil largely off the global market. Raisi is one of the protégés of Khamenei and many believe that he will become Iran’s next supreme leader.


Should you wish to receive more information about one of the topics described in this newsletter, please contact BenninkAmar Advocaten via e-mail at or via telephone at +31203085918.

[1] This judgment has not been made public (yet).

[2] Article 9 CAR Regulation 2014: “By way of derogation from Article 5, and provided that a payment by a natural or legal person, entity or body listed in Annex I is due under a contract or agreement that was concluded by, or under an obligation that arose for, the natural or legal person, entity or body concerned, before the date on which that natural or legal person, entity or body had been designated by the UN Security Council or the Sanctions Committee, the competent authorities of the Member States may authorise, under such conditions as they deem appropriate, the release of certain frozen funds or economic resources, provided that the competent authority concerned has determined that: (a) the funds or economic resources shall be used for a payment by a natural or legal person, entity or body listed in Annex I; (b) the payment is not in breach of Article 5(2); and (c) the Sanctions Committee has been notified by the relevant Member State of the intention to grant an authorisation 10 working days in advance”.

[3] Answer to question 9 in Frequently Asked Questions on EU restrictive measures in Syria (

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