EU Sanctions Update: criminal offences and penalties (Directive EU 2024/1226)

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 (“Directive”) was adopted by the European Union on 24 April 2024 and published in the Official Journal of the EU on 29 April 2024. The Directive enters into force on 19 May 2024 and Member States will then have 12 months to incorporate its provisions into their national law.

The Directive is intended to guarantee greater control by Member States over the effectiveness of restrictive measures decided by the Council of the EU on the basis of Article 29 TEU or Article 215 TFEU (“Union restrictive measures”). Member States are now required to provide a criminal response to the intentional violation of Union restrictive measures against both natural and legal persons, with effective, proportionate, and dissuasive penalties. 

The Directive identifies a number of criminal offences with corresponding penalties and limitation periods.

1. Criminal offences

The Directive considers that the following conduct constitute a criminal offence, when committed intentionally and in violation of Union restrictive measures or a national provision implementing Union restrictive measures: 

• making funds or economic resources available to designated persons,
• failing to freeze funds or economic resources belonging to or owned, held or controlled by designated persons,
• enabling designated persons to enter into, or transit through, the territory of a Member State,
• entering into or continuing transactions with a third State or bodies or entities owned or controlled by a third State or its bodies, including the award or continued execution of public or concession contracts if such transactions are prohibited or restricted,
• trading goods or services the import, export, sale, purchase, transfer, transit or transport of which is prohibited or restricted,
• providing services, financial services or performing financial activities which are prohibited or restricted.

The Directive requires that the criminal offences must be committed intentionally. However, the Directive goes further and states that listed conduct committed with serious negligence should also constitute criminal offences, at least when the violations relate to items included in the Common Military List of the EU or to dual-use items listed in Annexes I and IV to Regulation (EU) 2021/821 (Art 3(4) of the Directive). 

The Directive also states that the circumvention of Union restrictive measures should be considered a criminal offence (Art. 3(1) of the Directive). The Member States should take the necessary measures to ensure that inciting, aiding, abetting the commission of an offence and an attempt to commit it are punishable as a criminal offence (Art. 4 of the Directive). 

The Directive leaves room for Member States to determine whether certain conduct involving funds, economic resources, goods, services, transactions or activities with a value of less than EUR 10,000 is to be considered as a criminal offense. However, Member States shall ensure that the limit of EUR 10,000 or more can be reached by means of a series of offences committed by the same offender.

Lastly, the Directive does not apply to humanitarian assistance for persons in need or activities in support of basic human needs provided in accordance with the principles of impartiality, humanity, neutrality, independence and with international humanitarian law (Art. 3(5) of the Directive).

2. Penalties

The Directive requires Member States to provide a criminal response to the violation of Union restrictive measures against both natural and legal persons. 

• Natural persons: when violating Union restrictive measures, natural persons may incur one to five year imprisonment as well as fines and non-criminal penalties (such as disqualification from holding, within a legal person, a leading position of the same type used for committing the criminal offence, withdrawal of permits and authorisations to pursue activities that resulted in the relevant criminal offence, temporary bans on running for public office). (Art. 5 of the Directive)
• Legal persons: they may be held liable for criminal offences relating to the violation of Union restrictive measures where:
  • such offences have been committed for the benefit of those legal persons by any person who has a leading position within the legal person concerned, acting either individually or as part of an organ of that legal person.
  • the lack of supervision or control by a person with a leading position within the legal person concerned has made possible the commission by a person under its authority of a criminal offence for the benefit of that legal person.

In addition, legal persons may incur a minimum fine of 1 to 5% of their total worldwide turnover or EUR 8,000,000 to EUR 40,000,000 depending on the criminal offence and the calculation method, but also non-criminal penalties (such as exclusion from public fundings, placing under judicial supervision, withdrawal of permits and authorisations to pursue activities, disqualification from the practice of business activities) (Art. 6 and 7 of the Directive).

3. Limitation periods

Member States shall take the necessary measures to provide for limitation periods enabling the investigation, prosecution, trial and adjudication of covered criminal offences for a sufficient period of time after the commission of these offences. The Directive therefore sets out the following limitation periods: 

• A criminal offence punishable by a maximum term of imprisonment of at least five years: at least five years from the commission of the criminal offence
• A criminal offence punishable by a penalty of imprisonment of more than one year or punishable by a maximum term of imprisonment of at least five years: at least five years from the date of final conviction for the criminal offence.  

However, Member States can set limitation periods of less than five years, but no less than three years, considering that the periods may be interrupted or suspended in the event of specified acts (Art. 11(4) of the Directive).