NETHERLANDS Law and Practice Contributed by: Sebastiaan Bennink, Nicolas Burnichon, Siqi Zhao and Daniel Webb, Bennink Dunin-Wasowicz
6.2 Enforcement The authors are not aware of any public court judg - ments regarding the enforcement of judgments where sanctions issues arise. 7. Designation, Compliance and Circumvention 7.1 Executive Body Depending on the source of the sanctions regime, designation is decided by: • the EU Council (for EU sanctions); or • the Dutch Minister of Foreign Affairs (for the national terrorism sanctions list). 7.2 Scope of Designation EU restrictive measures, particularly Regulation 269/2014 regarding Russia, provide that “all funds and economic resources belonging to, or owned, held or controlled by sanctioned natural and legal persons shall be frozen”, which presumably includes the con - trolled or owned assets of companies owned or con - trolled by the designated person or entity, according to the Commission frequently asked questions (FAQs). Guidance was given by the Council on its best prac - tices for the effective implementation of restrictive measures. • Ownership means the possession of 50% or more of the proprietary rights of an entity or having majority interest in it. • Control includes: (a) having the right or exercising the power to appoint or remove a majority of the members of the administrative, management or supervi - sory body of such legal person or entity; (b) having appointed, solely as a result of the exercise of one’s voting rights, a majority of the members of the administrative, management or supervisory bodies of a legal person or entity who have held office during the present and previous financial year; (c) controlling alone, pursuant to an agreement with other shareholders in or members of a le- gal person or entity, a majority of shareholders’
or members’ voting rights in that legal person or entity; (d) having the right to exercise a dominant influ - ence over a legal person or entity, pursuant to an agreement entered into with that legal per - son or entity, or to a provision in its memoran - dum or articles of association, where the law governing that legal person or entity permits its being subject to such agreement or provision; (e) having the power to, de facto, exercise the right to exercise a dominant influence, as re - ferred to in the preceding bullet point, without being the holder of that right; (f) having the right to use all or part of the assets of a legal person or entity; (g) managing the business of a legal person or entity on a unified basis, while publishing con - solidated accounts; and (h) sharing jointly and severally the financial liabili - ties of a legal person or entity, or guaranteeing them. 7.3 Circumvention 7.3.1 Prohibiting Provisions Most EU regulations provide specific prohibitions against participating, knowingly or intentionally, in any activity the object or effect of which is to circumvent the prohibitions of the particular provision in which it is mentioned. Similar circumvention prohibitions are provided in general terms in some regulations, such as those related to Russia (Article 12 of Regulation 833/2014 and Article 9 of Regulation 269/2014). In addition, in the particular case of the EU Russia sanctions, a “best effort” clause provides that “Natural and legal persons, entities and bodies shall under - take their best efforts to ensure that any legal person, entity or body established outside the Union that they own or control does not participate in activities that undermine the restrictive measures provided for in the [Russia sanctions] Regulations”. Consequently, EU operators must ensure the entities they own or control do not participate in EU sanctions circumven - tion activities. 7.3.2 Criminal Penalties Various EU sanctions regulations include a prohibition against circumvention, such as Article 12 of Regula -
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