NETHERLANDS Law and Practice Contributed by: Sebastiaan Bennink, Daniel Webb, Charlotte Loomans and Siqi Zhao, Bennink Dunin-Wasowicz
2.2.6 Strict Liability Under the Sanctions Act 1977, all violations of the national sanctions regulations constitute a criminal offence if committed intentionally, or a misdemeanour if committed unintentionally. Certain EU regulations that are implemented into Dutch law also provide for a “non-liability clause” (see, for example, Article 10 of Regulation 833/2014), under which operators are protected against liability if they did not know or had no reasonable cause to suspect that their actions would infringe sanctions. However, these clauses cannot be invoked if operators failed to carry out appropriate due diligence. EU sanctions typically provide for derogations, ena - bling operators to carry out activities that would oth - erwise be prohibited by restrictive measures. Although their effects are similar, derogations differ from exemptions. While exemptions are automatic and only require a notification of their use to the authorities, derogations are subject to the authorities’ approval. Derogations require an application for authorisation from the national authorities, which benefit from a cer - tain margin of appreciation in determining whether to grant it. An exemption does not require an authority’s approval: its use is subject to conditions, but it is only declared to the authorities. Typical grounds for derogation are: • supply intended for humanitarian purposes, health emergencies and other exceptional circumstances; • supply of goods intended for certain co-operation programmes (space, nuclear programmes); • supply of goods with the assurance they will not be used by public entities; • supply of goods intended for diplomatic represen - tations; • wind-down periods, for entities to adapt and fulfil contracts executed prior to the prohibition; • divestment from Russia; • certain specific activities (gas extraction); and • certain thresholds. 2.3 Licensing 2.3.1 Derogation
2.3.2 Provision of Legal Services EU Regulation 833/2014 concerning restrictive meas - ures in view of Russia’s actions destabilising the situ - ation in Ukraine is the only regulations that provides for a legal services ban. However, it concerns not only designated persons but also all legal persons, entities or bodies established in Russia. The Netherlands does not issue any general licence for the provision of legal services to designated persons, nor does it issue any general licence for the provision of legal services to the Russian government or to legal persons in Russia. However, there are exceptions for the provision of ser - vices that are strictly necessary for: • the exercise of the right of defence in judicial pro - ceedings and the right to an effective legal remedy; and • ensuring access to judicial, administrative or arbi - tral proceedings in a member state, and for rec - ognising or enforcing a judgment or an arbitration award rendered in a member state, provided that such provision of services is consistent with the objectives of this Regulation and Regulation (EU) No 269/2014. In addition, the competent authorities may authorise legal advisory services where they are strictly nec - essary for the setting-up, certification or evaluation of a firewall measure removing the control of a listed person over a non-listed EU entity. 2.4 Reporting Reporting obligations differ depending on the sanc - tions framework and the applicable sanctions. Finan - cial institutions are particularly subject to such obliga - tions. In general, operators are also required to report their use of exemptions, either directly by means of reports or indirectly through the notification of their use. Designated persons and entities listed in Annex I shall report any assets and property they own in EU countries within six weeks of being added to the list. Such designated individuals and entities are to report via a special form sent by mail.
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