CL-2022-000456 - [2025] EWHC 1938 (Comm)

The NCA in the Netherlands is the Investment Assessment Office of the Ministry of Economic Affairs, the Bureau Toetsing Investeringen (“BTI”). On 13 December 2022, the BTI sent an email to ING which stated as follows:

“We have coordinated the sanctioning status of EuroChem Group AG (Switzerland) and its companies with the Ministry of Economic Affairs and Climate Policy (EZK). The Ministry of Economic Affairs and Climate Policy confirms that these entities are not directly or indirectly owned by, or controlled by, sanctioned persons. As a result, payments to these entities do not qualify as the indirect provision of funds to sanctioned persons, and the freezing obligation does not apply to these entities. For example, in the view of the Ministry of Economic Affairs and Climate Policy, there is sufficient distance between these entities and the sanctioned persons mentioned in your request to conclude that no exemption is required under EU sanctions for payments to these entities or release of their assets.

This position may change if the authorities of Cyprus come to different conclusions with regard to the ownership and control structure of the EuroChem group, or if further guidance from the European Commission so requires.

The foregoing applies to acts under Dutch jurisdiction and does not affect the fact that authorities in other EU Member States may assess the sanction status of the entities in question differently. It is ING's responsibility to follow the instructions of the local competent sanctioning authorities in each Member State.”

On 20 February 2023, the BTI added a message to this email chain, stating that it had changed its position, in the light of the view of the SEOK in Cyprus:

“In the email message of 13 December 2022 below, we shared information about the sanction status of EuroChem Group AG (Switzerland) and companies that fall under it, as coordinated with the Ministry of Economic Affairs and Climate Policy (EZK) at the time. It states that '[t]his position may change if the authorities of Cyprus come to different conclusions with regard to the ownership and control structure of the EuroChem group'.

In the meantime, the Cyprus authorities have come to different conclusions. This means that the vision in our email below no longer applies.

We are consulting with the Ministry of Economic Affairs and Climate Policy about the consequences for our view on the sanction status of the aforementioned companies. We will inform you about the outcome of this consultation.”

Thereafter, the BTI has provided formal opinions to ING on a number of occasions in relation to EuroChem AG and certain specific EU subsidiaries. For example, on 17 May 2024, it wrote:

“Within the powers of the BTI, I have assessed the information you have submitted and come to the following opinion based on this information:

I. EuroChem International Holding B.V. is not subject to the freezing measures set out in EU Regulation 2014/269.

II. To the extent that their transactions and activities take place within the applicability of Dutch law, the following are subsidiaries not subject to freezing measures under the said regulation:

a.

EuroChem Group AG (Switzerland)

b.

EuroChem Trading GmbH (Switzerland)

c.

EuroChem Agro GmbH (Germany)

d.

EuroChem International Holding B.V. (Netherlands)

e.

Societe EuroChem Agro France (France)

f.

EuroChem Antwerp N.V. (Belgium)

The combination of measures in relevant countries regarding these companies puts them at a sufficient distance from sanctioned persons to conclude that no waiver is required under EU sanctions for payments to these entities or release of their assets.

The above applies only to the six entities mentioned and to acts under Dutch jurisdiction, and does not affect the fact that authorities in other EU member states may assess the sanction status of the said entity differently. This judgment is strictly based on the facts and circumstances as stated by you and the documents as submitted by you. Any change therein may affect the sanctions status of the six entities mentioned above.

This judgment may also change if the intended measures were to change in those countries, if authorities of relevant states were to determine that these entities were not adequately implementing the intended measures, if new EU sanctions relevant to this case were to emerge, or if further guidance from the European Commission were to so require.

The foregoing is without prejudice to the legal obligation and own responsibility of all parties under EU jurisdiction, including EuroChem Group AG, its subsidiaries and its directors, to comply with EU sanctions. It is your own responsibility to follow the instructions of the competent sanctioning authorities in each Member State or, if necessary, to apply for an exemption.”

The position of the BTI is more cautious than that of some other NCAs. Its statements carefully say that they are based on the information provided; and its position over time has, at least to some extent, consciously reflected that of other NCAs. Above all, they are expressly limited to the position in the Netherlands and to entities and acts under Dutch jurisdiction.

The BTI clearly accepts that EuroChem AG and its subsidiaries within the firewall are not subject to asset-freezing or payment restrictions (i.e., under Article 2(1) or 2(2) of Regulation 269). The BTI has not made a direct statement of the position in relation to subsidiaries that are not behind the firewall, such as EuroChem NW2, presumably on the basis that it does not regard such entities as subject to its jurisdiction.

The logical implication of the BTI’s apparent acceptance of the views of the SEOK is that such non-EU subsidiaries are or may be subject to asset-freezing and payment restrictions under Article 2(1) and Article 2(2) of Regulation 269. However, this has not been directly stated by the BTI.