Sanctions 2024 Comparisons

Key Developments

The market in Belgium has been affected by EU sanctions developments in relation to the ongoing war in Ukraine. Between June 2023 and June 2024, the EU published eight new sanctions packages impacting Russia alone. The 14th sanctions package targeting Russia was published on 24 June 2024. There are also EU sanctions developments in relation to the conflict in the Middle East.

The latest Russia package includes asset freeze measures targeting state actors, private companies, and individuals linked to Russia and Belarus. It also involves sectoral sanctions measures targeting critical sectors such as LNG and oil, significantly reducing Russian oil and gas exports via the EU. The authors also notice increased restrictions on technology and dual-use goods exports to hinder military and technological advancements.

Impact on European Companies

European companies are facing higher compliance costs, operational challenges, disrupted supply chains, and significant financial losses from operations in Russia and Belarus.

Impact of COVID-19 Pandemic on Sanctions Sector

The COVID-19 pandemic continues to have an effect on the sanctions sector in Belgium, in the following ways.

• Regulatory compliance – the pandemic has strained resources, complicating compliance with evolving sanctions, especially under remote work conditions.
• Disrupted supply chains – COVID-19 worsened global supply chain issues, with sanctions further increasing costs for new suppliers.
• Financial strain – businesses face reduced revenues and higher costs, leading to financial and liquidity issues.
• Delayed implementation – some sanctions measures have been delayed owing to pandemic-related macroeconomic challenges and pressures.

Increased Use of Targeted Sanctions

Belgium supports sanctions adopted at the EU level. There is a significant shift towards more precise and focused sanctions targeting specific individuals, entities and sectors. This aims to reduce unintended humanitarian impact and adverse effects, while exerting maximum pressure on the designated targets.

Co-ordination With International Partners

The EU has increasingly aligned its sanctions efforts with international partners, particularly the USA, the UK, and other G7 nations. This enhanced co-ordination is designed to boost the effectiveness of sanctions and limit the scope for sanctions evasion.

Use of Sanctions for Human Rights Violations

Sanctions are being applied more frequently to combat human rights violations. The EU has utilised its Global Human Rights Sanctions Regime – also known as the “EU Magnitsky Act” – to sanction individuals and entities responsible for severe human rights abuses.

Technological and Cyber Sanctions

In response to the growing cyber-threat landscape, the EU has introduced sanctions targeting cyber-attacks and the improper use of digital technologies. These measures are designed to deter both state and non-state actors from engaging in harmful cyber-activities.

With Belgium being the centre of the EU, its jurisdiction has numerous sectors strongly affected by sanctions regulations. These include:

• financial services;
• the energy sector;
• defence and dual-use goods;
• technology and telecommunications;
• international trade;
• maritime and shipping;
• luxury goods and diamonds; and
• healthcare and pharmaceuticals.

Belgium was particularly affected by the financial sanctions, owing to the presence of world-leading securities depository Euroclear. The EU’s maximum oil price and ports ban affected the ports of the North Sea. The EU diamond ban affected the Antwerp diamond industry hub.

In Belgium, the key national competent authorities are the Federal Ministry of Finance and the Federal Ministry of Economy.

However, the competences for specific sanctions-related issues or licences are fragmented among several authorities – each with their own scopes of competences, listed in Annex I to Council Regulation (EU) No 833/2014. Among others, these include:

• the Belgian Ministry of Finance, which is generally competent for financial sanctions; and
• the Ministry of Economy, which is generally competent for restrictions on trade in goods.

Depending on the regions of Belgium in which the EU operator is active or the transaction takes place (Flemish Region, Brussels Capital Region, and Walloon Region), authorities may further vary and share competence.

In Belgium, financial institutions must report immediately to the Ministry of Finance’s Treasury Department the persons or entities detected that are subject to asset freeze measures. The National Bank of Belgium recommends that this reporting be made by the AML Compliance Officer (AMLCO). In such case, the AMLCO provides the General Administration of the Treasury with all the information at its disposal in order to enable the Treasury to carry out the necessary verifications ‒ for example, a copy of the identity card or passport of the person concerned, as well as a reference to the regulation or decision that imposes the sanction and which includes the name of the person or entity that is subject to the sanction.

Besides the asset-freezing measure and its notification to the Ministry of Finance’s Treasury Department, it may also be necessary to make a Suspicious Activity Report (SAR) to the authority in charge of AML ‒ namely, the Belgian Financial Intelligence Processing Unit (Cellule de Traitement des Informations Financières/Cel voor Financiële Informatieverwerking, or CTIF-CFI).

Court Decisions

The Belgian courts generally adhere to the provisions of EU law and EU guidelines issued by the European Commission regarding the implementation and enforcement of EU restrictive measures and may refer preliminary references to the ECJ when in doubt on the proper interpretation of the provisions of EU restrictive measures.

Despite several projects to increase the publication and dissemination of Belgian court’s case-law, there is generally little publicly accessible case law on EU restrictive measures and export controls by the civil and administrative courts. As a general rule, disputes involving the impact of sanctions on a business transaction may be litigated before competent civil courts. Infringements are prosecuted before criminal courts, and decisions on licences issued by the national competent authorities, often either the Ministry of Economy or the Ministry of Finance, may be challenged at the highest administrative court (the Council of State).

Notable case law includes a widely reported conviction on appeal in 2020 of three Belgian companies and their directors for the export of large quantities of a chemical compound “isopropanol” between 2014-16 without having obtained the required export licences under the Syrian export controls regulation of 2012. In that case, two directors were ultimately convicted to partially effective prison sentences, fines and asset confiscations. The case is not published, but is reported to also have clarified that the competent authority to criminally prosecute export licence infringements remains the public prosecutor’s office and not the custom’s authority.

There is only limited case law publicly available from the Council of State on appeals against negative licence decisions to release frozen assets, due to a practice of the Belgian Ministry of Finance to exploit a procedural mechanism in the appeal process which removes cases from the purview of the Council of State before it has an opportunity to review the appeal grounds.

Recent reports indicate that the Belgian Ministry of Finance appears to systematically exercise the option to retroactively "retract" decisions against which an appeal before the Council of State is filed. Consequently, the appeal procedure becomes "without object" and the Council of State must end the procedure without substantive review of the appeal grounds against the contested decision. Once the Ministry retracts such a decision, it should in principle render a new decision as if it were in the condition applicable at the time of making the original decision. However, the practice seems to be that the Ministry does not make a new decision unless it is forced to do so by a specific procedure, at which stage it may again retract that new decision if that decision is appealed against, such that its decisions are de facto never subjected to the jurisdictional review of the Council of State.

It is therefore to advised to carefully consider with an experienced counsel whether this practice will still impact a case at the time of appeal, and whether other procedural options are available to trigger effective jurisdictional review against unfavourable licence decisions to release frozen assets issued by the Belgian Ministry of Finance.

Legal Developments

EU regulation on the treatment of frozen assets is of particular importance to Belgian practice because one of the world-leading central security depositories, Euroclear, is based in Belgium. On 21 May 2024, the Council of the European Union adopted Council Regulation (EU) No 2024/1469, allowing net profits generated from the frozen assets of the Central Bank of Russia held in EU Central Security Depositories (CSDs) to support Ukraine. This regulation amends Article 5a of Council Regulation (EU) No 833/2014 and introduces a new annex (“Annex XLI”) to the regulation. Owing to EU sanctions, more than EUR200 billion worth of Russian Central Bank assets are frozen in CSDs such as Euroclear and Clearstream, with reinvestments generating more than EUR5 billion in profits. As of 15 February 2024, CSDs have been required to segregate these profits and are now mandated to transfer 99.7% of the net profits, after costs and taxes, to the EU budget to support Ukraine. These funds will be used for the EU’s Ukraine Facility, aimed at Ukraine’s recovery and reconstruction, with up to 10% potentially redirected to EU programmes supporting Ukraine’s defence industry. Payments will be made bi-annually for as long as the sanctions are in place, with annual reviews of the allocation.

Additionally, on 24 April 2024, the EU adopted Directive (EU) 2024/1226 on the definition of criminal offences and penalties for the violation of Union restrictive measures and amending Directive (EU) 2018/1673. The new EU rules harmonising criminal offences and penalties for violating EU restrictive measures are in effect as of 19 May 2024. These rules ensure that violations – such as failing to freeze assets, breaching travel bans, and circumventing services and goods bans ‒ can be criminally investigated and prosecuted across all EU member states. They establish common standards for penalties for both individuals and entities, enhancing deterrence and closing legal loopholes. The rules also strengthen the freezing and confiscation of sanctioned assets and improve co-operation and communication between authorities within and among EU member states.

Legal Developments

On 24 June 2024, the EC welcomed the Council of the European Union’s adoption of the 14th package of sanctions against Russia, aimed at reducing Russia’s revenue sources and war capabilities. This package includes measures such as prohibiting investments in and exports to Russian LNG projects, banning Russian LNG transshipment in EU ports, and targeting vessels that support Russia’s war efforts. Additionally, 116 individuals and entities have been listed for asset freezes and travel bans, and a new ban on using Russia’s financial messaging system SPFS (System for Transfer of Financial Messages) has been introduced.

The new 14th package restricts exports of dual-use and advanced technology items and imposes stricter export controls on entities associated with Russia’s military. New measures also address sanctions circumvention, reinforce the import ban on Russian diamonds, and strengthen transport restrictions.

Directive (EU) 2024/1226 on the harmonisation of definitions and penalties for sanctions violations has been adopted in April 2024 and must be transposed in the national legislation of all EU member states, including Belgium, by 20 May 2025. This directive, once transposed, may significantly alter (and increase) criminal liability for sanctions violations.

Administrative Review by the Council of the European Union

The individual or entity designated under EU sanctions may ‒ within a time-limit determined by the Council of the European Union – submit observations to the Council of the European Union, asking for a review or removal of their listing. Those observations are submitted only once and could include detailed reasons and supporting evidence explaining why the listing is no longer justified or why the circumstances have changed.

The Council of the European reviews the observations and considers the evidence provided as part of a general review for all listed persons from the same third country. If the Council of the European Union finds the arguments justified, it may decide to remove the individual or entity from the sanctions list. If the Council of the European Union rejects the request, the individual or entity remains on the sanctions list.

The Council of the European Union must provide sufficient and concrete reasons for each (re-)listing decision.

Judicial Review by the CJEU

The individual or entity can bring an action for annulment before the EU’s General Court in accordance with Articles 263, paragraph 4 and Article 275, paragraph 2 of the Treaty on the Functioning of the European Union (TFEU). The applicant must argue that the listing is unlawful, presenting grounds such as violations of fundamental rights, lack of sufficient Council of the European Union evidence, procedural errors, or errors of assessment.

If the General Court finds the listing unlawful, it annuls the individual listing, which – in principle – should result in the individual’s or entity’s removal from the sanctions list. However, the Council of the European Union may find new reasons for maintaining the listing of the successful applicant. If the General Court upholds the listing, the individual or entity remains on the list with the same or updated reasons. Belgian courts follow the judgments of the EU courts.

Compensation of Damages

Alongside or following the annulment action, the individual or entity can file a claim for damages before the CJEU. The claim must demonstrate that the wrongful listing caused financial loss or other harm and establish a causal link between the listing and the damages. If the court finds in favour of the applicant, it awards damages to compensate for the financial and non-material harm suffered. If the court rejects the claim, no compensation is awarded.

In the context of EU law, which is relevant for Belgian law, a de-listing challenge can achieve several significant outcomes.

First, an individual or entity may be delisted by the Council of the European Union. This occurs when the Council of the European Union reviews evidence and decides to remove the individual or entity from the list, finding that the original reasons for listing are no longer valid or were incorrect.

Second, the EU’s General Court may annul the individual listing, which can lead to delisting. If an individual or entity brings an action before the General Court, and the latter finds that the listing is unlawful, it can annul it. This annulment results in the individual or entity being delisted.

Lastly, an individual may file an action for damages to the EU’s General Court. If the General Court determines that the listing was unlawful and caused harm, it can award damages to compensate for the financial loss and other harm suffered due to the wrongful listing. Such damages have rarely been awarded, owing to the difficulty meeting the legal tests for damages suffered and causality.

In the EU legal system, which is relevant for Belgium, the minimum period in which delisting can occur is six to 12 months from the date of initial listing – something that is relevant for sanctions against Russia and Belarus. This may extend to several years in cases where the individual’s/entity’s listing is renewed at regular reviews and/or is challenged in the EU’s General Court.

Council Regulation (EU) No 833/2014 imposes several service-related bans aimed at restricting trade and economic interactions with Russia. These bans, alongside legal and other professional services prohibitions, include the following.

• Technical assistance and brokering service – there is a prohibition on the provision of technical assistance, brokering services, or other services related to goods and technology covered by export bans. This includes services associated with use of dual-use goods and technologies that might contribute to Russia’s military or technological enhancement.
• Financial services – there is a ban on providing financial assistance for trade involving prohibited goods and technologies. This extends to credit-rating services and other financial activities that could support Russian sanctioned sectors.
• Business and industrial software services – the Russia sanctions include a prohibition on providing software for business management and industrial design and production. This covers systems such as Enterprise Resource Planning (ERP) software, which is used for managing supply chains and customer relationships.
• Transport and logistics services – the regulation bans services related to the transportation of goods covered by the sanctions. This includes restrictions on Russian transport undertakings operating within the EU and the use of EU ports and locks for certain Russian vessels.
• Prohibition on media services – certain Russian media outlets are subject to a broadcasting suspension within the EU. Additionally, advertising on these banned media outlets by any means is prohibited.
• Cryptocurrency services – the regulation extends to services involving crypto wallets, crypto accounts, or crypto custody services for Russian nationals and residents. These measures aim to prevent the use of cryptocurrencies to circumvent other sanctions.

Council Regulation (EU) No 833/2014 imposes restrictions on the export and import of several goods to and from Russia. These bans include the following.

• Dual-use goods and technology, which can be used for both civilian and military purposes, are restricted. Military goods, specifically designed for military applications, are also prohibited. Maritime navigation equipment for maritime use is restricted, as are advanced electronics and components – particularly those intended for military applications. Industrial machinery used in various production processes is also included in the sanctions.
• The energy sector faces sanctions on equipment and technology related to oil exploration, production, and refining.
• Aviation and space industry goods, including aircraft and spacecraft, are restricted as well. Motor vehicles ‒ including trucks, buses, and special vehicles, as well as high-end luxury vehicles – are prohibited.
• High-value luxury goods (eg, luxury cars, jewellery, and high-end fashion items) are banned if they exceed certain value thresholds. Precious metals and stones (eg, gold, silver, platinum and diamonds) are banned.
• Iron and steel products – both finished and semi-finished – are sanctioned, alongside coal and other solid fossil fuels.
• Banknotes and securities, which include currency and financial instruments, are restricted under the sanctions.

Belgian courts may consider compliance with sanctions as a case of force majeure. This means that companies may be able invoke force majeure clauses in their contracts to suspend or terminate performance of obligations as a result of sanctions against Russia. If the performance of a contract becomes illegal owing to the sanctions imposed, Belgian courts may rule that the contract cannot be performed. This can lead to the application of the doctrine of “frustration”, whereby a contract is rescinded because it has become impossible to perform it without breaking the law.

Belgian courts handle the enforcement of judgments involving sanctions by carefully adhering to both domestic law and EU regulations.

Under EU law, judgments rendered by courts in other EU member states generally enjoy automatic recognition and enforcement within all EU member states. It is not required to obtain a prior recognition and enforcement by a Belgian court.

However, in practice, EU operators may still refuse enforcement if circumstances that appear to be a violation of EU sanctions become known during enforcement efforts. This is particularly true if they were not addressed by an EU court judgment or if the activity required by the EU operator is subject to licence requirements (such as release of funds by a bank).

In such cases, parties involved may request required domestic licences based on the judgment or address the issue to a specific instance called the Attachment Judge (beslagrechter or juge des saisies), who is competent for disputes arising from conservatory or executionary attachment of assets or the enforcement of judgments on Belgian territory.

Judgments rendered by courts outside the EU can be enforced in Belgium under the rules of the Belgian Code of Private International Law but need to obtain an exequatur. The exequatur is essentially a judgment confirming recognition and enforcement of a foreign judgment on Belgian territory. This is an ex parte procedure within which the Belgian court reviews the outcome of a foreign judgment for compliance with, inter alia, EU sanctions.

Compliance with EU sanctions is considered to fall under the public order exceptions that may lead to non-recognition or non-enforcement of foreign judgments.

The Council of the European Union, which represents the governments of EU member states, adopts legal acts imposing restrictive measures (sanctions) through decisions and regulations. These decisions are typically based on proposals from individual member states, the EC and the European External Action Service (EEAS). Such decisions are binding on EU member states, including Belgium.

Belgian law and its courts generally adhere to the “owned or controlled” criteria set out in Council Regulation (EU) No 269/2014 (individual listings of Russian persons and entities) and the EC and Council of the European Union guidance and best practices. Some confusion may arise in Belgium because of the minor grammatical differences and terminology used in the different language versions of provisions in Council Regulation (EU) No 269/2014.

Under Council Regulation (EU) No 269/2014, if a designated person or entity owns more than 50% of a legal person or entity, that entity – as a result of the majority ownership – is considered to be owned by the designated person or entity. Additionally, even if a directly sanctioned person or entity does not own a majority of the shares in that entity, it may still be considered to be “controlled” by a directly sanctioned entity if the latter is able to exert a decisive influence on the management or policy of the entity through other means than a majority participation in its capital.

The criteria to be taken into account when assessing whether a legal person or entity is controlled by a designated person or entity ‒ alone or pursuant to an agreement with another shareholder or other third party – could include:

• having the right or exercising the power to appoint or remove a majority of the members of the administrative, management or supervisory body of such legal person or entity;
• 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;
• controlling alone ‒ pursuant to an agreement with other shareholders in or members of a legal person or entity – a majority of shareholders’ or members’ voting rights in that legal person or entity;
• having the right to exercise a dominant influence over a legal person or entity – pursuant to an agreement entered into with that legal person or entity or pursuant to a provision in its memorandum or articles of association – where the law governing that legal person or entity permits its being subject to such agreement or provision;
• having the power to exercise the right to exercise a dominant influence referred to in the preceding point, without being the holder of that right;
• having the right to use all or part of the assets of a legal person or entity;
• managing the business of a legal person or entity on a unified basis, while publishing consolidated accounts; and
• sharing jointly and severally the financial liabilities of a legal person or entity, or guaranteeing them.

If any of these criteria are satisfied, it is considered that the legal person or entity is controlled by a designated person or entity, unless the contrary can be established on a case-by-case basis.

It should be noted that slight grammatical discrepancies between the English and Dutch versions of provisions in Council Regulation (EU) No 269/2014 have been known to cause confusion in (particularly lower) domestic courts relating to the interpretation of these “owned or controlled” rules.

The Dutch language version of Article 2(2) of Council Regulation (EU) No 269/2014 refers to verbonden ondernemingen (“connected enterprises”), which is a defined term in the  Belgian Code on Companies and Associations. The Belgian Code on Companies and Associations distinguishes between various types of company relations, including “enterprises connected to” and “enterprises associated with”. Connected enterprises are those sets of enterprises that are controlled by, or exercise control over, that other company or with whom those companies are in a consortium. The Belgian Code on Companies and Associations also defines control as the “de facto or legal power to exercise a decisive influence on the appointment of the majority of its directors or on the direction of its management”.

Control is irrefutably presumed by law if it results from:

• the holding of the majority of the shares in a company;
• the right to appoint or terminate the mandate of a majority of the directors or managers;
• controlling power organised by the company statutes; or
• agreements concluded with the sanctioned shareholder or with other shareholders.

Assessing whether a sanctioned person or entity has a power of control over an entity through shareholder participation must cumulate the percentage in participations through several shareholders to take into account the consolidated power of control resulting from different participations.

By contrast, the French-language version of Article 2(2) of Council Regulation (EU) No 269/2014 refers to the word associé (“associated with”). Under Article 1:21 of the Belgian Code on Companies and Associations, an associated company may be interpreted as any entity linked to the other by virtue of a notable or significant (but not “decisive” and thus “controlling”) influence in the other company. This influence is presumed, but rebuttable, as of a 20% shareholding.

The difference between these equally authoritative versions in the official languages of Belgium has been known to cause some confusion ‒ particularly in courts with less experience of the application of sanctions ‒ when it comes to how to interpret these rules. However, it should be stressed that these terms relating to ownership or control by a directly sanctioned entity in EU regulations should be interpreted autonomously and uniformly throughout the EU member states. Provisions of an EU regulation must be interpreted uniformly in line with their systemic and teleologic meaning within the EU regulation, for which the EC’s FAQs and the Council of the European Union guidance can provide meaningful reference.