On 30 October 2024, the Swiss Federal Council announced the adoption of further sanctions against Belarus (the official media release can be viewed here). These new measures mirror those imposed by the EU against Belarus on 29 June 2024 (see blog post here) and increase consistency between the Ordinance on Measures against Belarus (“Belarus Ordinance”) and the EU Belarus sanctions. However, as could be observed in the context of Switzerland’s last round of sanctions imposed against the Russian Federation (see blog post here), the Swiss Federal Council has again explicitly refrained from implementing certain measures imposed by the EU, including the EU’s “best efforts” provision in the context of anti-circumvention measures on third-country subsidiaries, as well as due diligence obligations imposed on companies to prevent the re-export of high-priority goods to Belarus.
Newly adopted measures
Extension of lists of items subject to export/import restrictions
The revised Belarus Ordinance has substantially expanded restrictions on the export of goods to or for use in Belarus, and on the import of goods from Belarus or of Belarusian origin.
Under the new measures imposed, the sale, supply, export and transit, as well as the provision of related services, of the following goods to Belarus or for use in Belarus are prohibited:
- Maritime goods and technologies (Article 10b of the Belarus Ordinance, Annex 17)
- Goods for oil refining and the liquefaction of natural gas (Article 10c of the Belarus Ordinance, Annex 18), whereby the prohibitions do not apply to transactions that were contractually agreed before 31 October 2024 and are completed by 1 February 2025 (Art. 31 para. 11 of the Belarus Ordinance)
- Goods for industrial strengthening (Article 10d of the Belarus Ordinance, Annex 19), whereby the prohibitions do not apply to transactions that were contractually agreed before 31 October 2024 and are completed by 1 February 2025 (Art. 31 para. 8 of the Belarus Ordinance), as well as certain other exceptions
- Luxury goods (Article 10e of the Belarus Ordinance, Annex 21)
Additionally, the direct or indirect sale, licensing or transferring of intellectual property rights or trade secrets, and the granting of rights of access to materials or information protected by intellectual property rights or constituting trade secrets in connection with the goods listed above (or goods already subject to such restrictions under the Belarus Ordinance) to natural or legal persons, entities or bodies in Belarus or for use in Belarus are now prohibited.
Furthermore, the purchase, import, transit and transportation of the following goods from Belarus or with origin in Belarus are prohibited:
- Goods of economic significance (Article 10f of the Belarus Ordinance, Annex 22), whereby the prohibitions do not apply to transactions that were contractually agreed before 31 October 2024 and are completed by 1 February 2025 (Article 31 para. 12 of the Belarus Ordinance)
- Gold of Belarusian origin and exported from Belarus after 31 October 2024, or such gold that has been processed in a third country (Article 10g paras. 1-2 of the Belarus Ordinance, Annex 23)
- Products containing gold with Belarusian origin that were exported from Belarus to Switzerland after 31 October 2024 (Article 10g para. 3 of the Belarus Ordinance, Annex 24)
- Diamonds and products containing diamonds from Belarus or with origin in Belarus, as well as diamonds and products containing diamonds of any origin that have been transited through Belarus (Art. 10h of the Belarus Ordinance, Annex 25)
- Crude oil (Art. 11 para. 1 let. a of the Belarus Ordinance, Annex 7a), whereby the prohibition only takes effect for transactions after 1 February 2025 (if concluded before 31 October 2024, Art. 31 para. 1 of the Belarus Ordinance), and a certain number of other commodities (Art. 11 para. 1 of the Belarus Ordinance)
The revised Belarus Ordinance now also contains grounds for exemptions for the withdrawal of investments from Belarus. According to Art. 27a of the Belarus Ordinance, SECO may issue authorizations for the sale, supply, transit and transportation of restricted goods under certain conditions, particularly if such transactions are necessary for the withdrawal of investments from Belarus or for the termination of business activities in Belarus (Art. 27a para. 1 let. a of the Belarus Ordinance).
Transit of goods
In addition to the new export and import restrictions, existing bans on certain items have been extended to include the transit of these items through Belarus, including the following:
- Armaments and goods for internal repression (Article 2 para. 2bis of the Belarus Ordinance)
- Dual-use goods according to Annex 2 of the Goods Control Ordinance (Article 4 para. 1bis of the Belarus Ordinance)
- Goods for military and technological strengthening, or for the development of the defense and security sector (Article 5 para. 1bis of the Belarus Ordinance, Annex 3)
- Certain machines (Article 6 para. 1bis of the Belarus Ordinance, Annex 4a)
- Goods for the aerospace industry (Article 10a para. 1bis of the Belarus Ordinance, Annex 16)
- Certain goods for industrial strengthening (Article 10d para. 2 of the Belarus Ordinance, Annex 20)
Measures in the financial sector
A new Article 24a of the Belarus Ordinance introduces a number of prohibitions in connection with companies in the energy sector in Belarus. Among other things, the acquisition of new or the expansion of existing participations in legal entities, companies or organizations that were founded or registered under the law of a state outside Switzerland or the EEA, and are active in the energy sector in Belarus, as well as the provision of loans, credits or other financial resources to such entities is now prohibited. The new Article 24a also provides licensing grounds for the case of severe shortages of energy supply in Switzerland or an EEA member state, or for the exclusive benefit of entities owned by an entity established under Swiss law or the law of an EEA member state.
“No Belarus clause”
Similarly to the existing sanctions against Russia, a new Article 11a of the Belarus Ordinance introduces the obligation that, in the case of the sale, delivery, export, transit or transportation of certain goods (as listed in Annexes 16, 26 as well as 11a) to a third country outside the EEA or a partner state as defined in Article 1 let. f, exporters must contractually prohibit the re-export of these goods to or for use in Belarus by the counterparty. This new measure is not applicable to transactions that were contractually agreed before 1 July 2024, until their expiry date.
Services ban
A new Article 24b of the Belarus Ordinance enforces a ban on providing business services and software to the Belarusian state, including its government, public bodies, corporations and agencies, and to any person acting on behalf or at the direction of the foregoing. Most notably, unlike the services ban in force against Russia, these restrictions do not extend to private Belarusian entities. It further does not apply to transactions that were contractually agreed before 31 October 2024 and are completed by 1 February 2025.
The services ban includes accounting, auditing, bookkeeping, tax consulting, public relations, architecture and engineering, as well as legal advisory services. As is the case under the Russia sanctions, there is an exception for services and software intended for the exclusive use of entities established in Belarus that are owned or controlled by entities incorporated or registered under Swiss law, the law of an EEA member state, or the law of a partner state. This contrasts with the EU, where it is required to obtain a license. The provision of such services or software must be notified to SECO on a six-month recurring basis, the first notification deadline being 31 July 2025. As in the case of Russia, the notifications will also have to include information on the type and value of the services and software concerned.
Ring-fencing measures
Similarly to the Russia Ordinance, the Belarus Ordinance provides for licensing grounds in Article 12 para. 5 and Article 24b para. 10 in the event that the establishment, certification or evaluation of ring-fencing measures is impeded by such restrictive measures, namely by the asset freeze or the services ban.
As defined in the Belarus Ordinance, such measures must consist of a system that removes the control exercised by the designated person over the assets of an entity incorporated or registered under Swiss law or the law of an EEA member state that is not itself designated, and ensures that the designated person does not benefit from any other funds or economic resources.
Possibility to claim damages
Under the new heading 4b, titled “Compensation and protection for Swiss individuals and organizations,” the Swiss Federal Council has introduced Article 27c of the Belarus Ordinance. This article grants Swiss nationals, residents in Switzerland, and legal persons, entities and bodies established in Switzerland the right to claim, in legal proceedings before the competent Swiss courts, compensation for costs incurred as a result of claims brought by persons directly or indirectly targeted by sanctions, or Belarussian individuals or entities before courts in third countries in connection with contracts or transactions, the performance of which is impeded by the Belarus Ordinance.
Measures not implemented
“Best efforts” anti-circumvention measures
In parallel to the anti-circumvention measures included in the 14th sanctions package against Russia, the EU also introduced an obligation for EU persons to “undertake their best efforts” to ensure that their owned or controlled subsidiaries in third countries do not engage in activities that “undermine” the EU’s Belarus sanctions. As seen in its decision regarding the implementation of new Russia sanctions on 16 October 2024, the Swiss Federal Council has also decided not to implement this provision in its Belarus sanctions. Again, it refers to its previous reasoning, stating that existing Swiss law already allows for the prosecution of companies circumventing sanctions through the use of their subsidiaries.
Further measures not implemented
- The Swiss Federal Council has also decided not to adopt the EU’s due diligence provision regarding the risks of exportation of high-priority goods to Belarus, as Swiss companies are already legally obliged to comply with the respective measures.
- An extension of the ban on freight transport was not adopted either.
Conclusion
Apart from the occasional updates of the Annexes to the Belarus Ordinance that lists Swiss DPs (the last update being in August 2024), the Belarus Ordinance was last updated on substance in August 2023. The Belarus sanctions were always less comprehensive and hence less stringent than the Russia sanctions, and thus not so much on the radar. This has certainly changed with this latest revision of the Belarus Ordinance, expanding the Belarus sanctions in particular by adopting a number of restrictions already in place against Russia under the Ukraine Ordinance.
