In a judgment of 10 January 2023 (ECLI:NL:HR:2023:2), the Dutch Supreme Court confirmed that the applicable standard of proof for “intentional” violations of EU sanctions under Dutch law is generally low. The judgment confirmed that, although the intent of the accused with regard to the constituent elements of the relevant sanctions prohibition must be sufficiently proven to establish an intentional violation, intent does not need to be proven as to the unlawfulness of the conduct.

The judgment related to a case involving the alleged indirect making available of funds to one or more listed terrorist organizations (through a one-off wire transfer of EUR 245) in violation of Article 2(2) of EU Regulation 881/2002. This Article essentially provides that “no funds or economic resources shall be made available, directly or indirectly, to, or for the benefit of” certain listed parties. Similar restrictions are present in other EU sanctions regimes, as part of so-called “Designated Person” or “DP” controls.

EU sanctions restrictions that are set out in EU Regulations (such as EU Regulation 881/2002) are directly applicable in all EU Member States. However, enforcement and relevant penalties are primarily governed under national laws. In the Netherlands, violations of EU sanctions restrictions are dealt with under criminal law pursuant to the Dutch Economic Offences Act (Wet op de economische delicten). Violations of EU sanctions could, among others, result in fines, community service or imprisonment. Although there can also be liability for non-intentional violations, potential maximum penalties are significantly higher for intentional violations.

In its judgment, the Supreme Court held – despite arguments by the defense to the contrary – that there is no legal basis to conclude that it must (also) be proven that the accused had an intention not to comply with the relevant EU sanctions to establish an intentional violation under Dutch law. However, the Supreme Court considered that the Court of Appeals did not sufficiently substantiate its finding with regard to the intent of the accused in relation to the constituent elements of the prohibited conduct (in this case, (i) the making available of funds or economic resources; and (ii) to or for the benefit of a DP). Therefore, the Supreme Court annulled the judgment in relevant parts and sent the matter back for reconsideration.

It follows from this judgment that (i) while intent of the suspect does not need to be proven with regard to the unlawfulness of the conduct, (ii) such intent does need to be sufficiently proven with regard to the constituent elements of the relevant prohibition to support a finding of an intentional violation. Based on established case law, at a minimum “conditional intent” is required. This means that the accused must at least have deliberately accepted a considerable chance that the conduct would occur.

This judgment is of general relevance as to how EU sanctions are prosecuted under Dutch law, namely: (i) the standard of proof for intentional violations of EU sanctions under Dutch law is generally low; and (ii) one-off violations, including those with a relatively minor monetary value, may result in enforcement actions and criminal liability. These factors are particularly relevant in light of the central role of the Netherlands in international trade flows and the generally more restrictive position and increased scrutiny of Dutch authorities regarding possible EU sanctions violations, in particular in relation to Russia.


Derk advises clients on a wide variety of EU, regulatory and competition law matters, including merger control, cartels and vertical agreements. In addition, he advises and assists clients with respect to compliance and enforcement issues relating to EU and Dutch export controls, trade laws and sanctions. Derk has further acted for clients in various compliance investigations, both internally and involving government authorities.


Paul Amberg is a partner in Baker McKenzie’s Amsterdam office, where he handles international trade and compliance issues. He advises multinational companies on export controls, trade sanctions, antiboycott rules, customs laws, anticorruption laws, and commercial law matters. Paul helps clients assess and address compliance risks presented by export controls, trade sanctions, antiboycott rules, customs laws, and anticorruption laws. His practice especially focuses on internal reviews, voluntary disclosure filings, and enforcement actions brought by, the US Government in relation to the Export Administration Regulations (EAR), International Traffic in Arms Regulations (ITAR), trade and economic sanctions programs, and US customs laws.


Sietske is a Junior Associate within the Amsterdam competition and trade practice group. Sietske particularly focuses on EU/Dutch Competition Law, Dutch trade matters and compliance with EU sanction regulations. Competition matters that Sietske advises upon often include merger control, alleged cartel investigations, vertical agreements and FDI screenings. Trade matters may include export control, export license applications, and application of trade or sanction laws. Competition and trade matters may be advisory or as part of an Investigation of (public/private) procedure.