NETHERLANDS Trends and Developments Contributed by: Sebastiaan Bennink, Sally Eshun, Siqi Zhao and Daniel Webb, Bennink Dunin-Wasowicz
minimum rules concerning the definition of the crimi - nal offences and the related penalties for violations. Article 82 (2) of the TFEU provides that minimum rules are to take into account the “differences in the legal traditions and systems of the Member States”. Spe - cifically, such minimum rules are to concern: • mutual admissibility of evidence between member states; • the rights of individuals in criminal procedure; • the rights of victims of crime; and • any other specific aspects of criminal procedure that the Council has identified in advance by a decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament. Member states are, of course, within their right to exercise their national discretion and build upon the minimum rules in their own legislation, at least in the field of procedural criminal law. However, they must remain cognisant of the fact that the minimum rules are established with the goal of facilitating mutual recognition and cross-border co-operation in crimi - nal matters. As such, member states, in establishing national provisions, must ensure that such provisions remain in line with the objectives established by the EU. Returning to Directive 2024/1226, it essentially estab - lishes a comprehensive minimum harmonised frame - work criminalising sanctions violations and establish - ing accomplice liability. The Directive also sets out minimum penalties for both natural and legal persons in Articles 5 and 7, along with scenarios pertaining to aggravating and mitigating factors in Articles 8 and 9. Furthermore, it outlines investigative powers and expectations regarding co-ordination between author - ities. Below, the authors will briefly discuss each of these aspects in turn. In Article 13, the Directive explicitly allows member states’ authorities to, where appropriate, use tools that are typically used as part of serious criminal investiga - tions such as wiretapping, surveillance and financial tracking. This is notable as the suggestion that such tools may be proportionate in certain circumstances demonstrates how serious it believes sanctions vio -
lations are in light of the foreign policy objectives set by the EU. Notably, in Article 15, the EU legislates that member states should increase the co-ordination between their respective enforcement bodies, Europol, Eurojust and the European Public Prosecutor’s Office. In Recital 35, it argues that this is to ensure effective investigation and prosecution. This is understandable as sanctions violations may involve activities and entities across multiple member states. The Directive allows member states to derogate from defining some conduct as a criminal offence when the goods or services involved have a value of less than EUR10,000. This discretion applies to six types of conduct, as defined in Article 3, paragraph 1 of the Directive, which include, among others: making funds or economic resources available to a desig - nated person or entity; failing to freeze funds or eco - nomic resources belonging to or owned by a des - ignated person or entity; and breaching or failing to fulfil conditions under authorisations granted by competent authorities to carry out certain activities. This framework allows member states to establish a severity threshold when defining specific criminal violations of sanctions measures, whereby conduct involving funds, economic resources, goods or ser - vices valued below EUR10,000 may be excluded from criminal liability. Under Article 9, the Directive also provides for mem - ber states to implement structures that allow miti - gating factors to be taken into consideration specifi - cally in instances in which the offender provides the national authorities with information that they would otherwise not have been able to obtain. The obligation to provide for voluntary self-disclosure is not explicitly mentioned in the Directive. This is likely in consid - eration of national legal rules in respect of criminal investigations. For instance, while self-reporting for regulatory offences pertaining to sanctions was previ - ously possible in Germany, this avenue is not available to criminal offences under German law. National enforcement in view of the EU Directive In determining criminal offences for sanctions viola - tions, each member state is now subject to harmoni -
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