Breaching international sanctions (EU, OFAC and UN): the criminal exposure in Spain and how it is defended

Restrictive measures — what is commonly known as international sanctions — have become a major source of criminal exposure for exporting companies, financial institutions, intermediaries and professionals operating in international markets. The most common question is a direct one: what happens in Spain if you breach an EU, OFAC or UN sanction? The answer surprises many, because there is no specific offence of "breaching international sanctions" in the Spanish Criminal Code. Criminal liability is channelled through other existing routes — chiefly smuggling and money laundering — and, in the future, through the transposition of a European directive. We explain this from the firm's technical standpoint, without alarmism and without promises of results.

What restrictive measures are and where they come from

When we speak of international sanctions we mean a set of prohibitions and restrictions imposed by different bodies to put pressure on states, regimes, persons or entities. In Spanish practice, three main sources coexist:

• European Union: this is the primary and most directly applicable source. The EU adopts its restrictive measures through directly applicable regulations in every Member State, with no need for an internal transposing rule. They include the freezing of funds and economic resources, export and import bans and lists of designated persons and entities with whom no dealings are permitted.
• United Nations: resolutions of the UN Security Council impose sanctions which, in the European sphere, are usually then incorporated through the corresponding EU regulations.
• OFAC (United States): the Office of Foreign Assets Control manages the SDN lists and a sanctions regime with significant extraterritorial reach. Although it is US law, in practice it constrains Spanish companies and banks because of their exposure to the dollar and the international financial system.

The result is that a single transaction may be subject, at the same time, to European, US and United Nations rules, with perimeters that do not always coincide. That overlap is, in fact, one of the first things to analyse in any matter.

Spain has no stand-alone sanctions offence

This point is worth stressing because it is a frequent source of confusion. The Criminal Code contains no stand-alone offence punishing, under that name, the breach of restrictive measures. There is no "sanctions article". That does not mean such conduct goes unpunished: it means the criminal reproach is built on pre-existing offences whose elements match the specific conduct. The two pillars are smuggling and money laundering, to which the transposition of Directive (EU) 2024/1226 will be added.

The smuggling route (Organic Law 12/1995)

Organic Law 12/1995 on the suppression of smuggling is the main criminal tool against breaches of foreign-trade prohibitions and restrictions. It punishes, among other conduct, the export, import, trade, holding or movement of goods without the required authorisation or in breach of legally established prohibitions, in situations such as:

• Defence material and dual-use material (products with both civil and military application).
• Goods subject to embargo or to restrictions arising from international restrictive measures.
• Goods whose trade is prohibited or subject to licence, where customs control or the administrative authorisation is circumvented.

The underlying idea is simple: if an EU restrictive measure prohibits sending certain goods to a destination or to a designated person, doing so without the relevant licence — or despite an express prohibition — may fall within the smuggling offence. The penalties vary according to the value of the goods and their nature (defence material is not treated like other goods), and the law distinguishes between the administrative smuggling infringement and the criminal offence, depending on the amount and the circumstances. Correctly classifying the facts as an infringement or as a crime is, in itself, a matter for the defence.

The money-laundering route (Art. 301 CP)

The second main pillar is the money-laundering offence in Article 301 CP. It punishes anyone who acquires, possesses, uses, converts or transfers assets knowing that they originate in criminal activity, or carries out any act to conceal or disguise their unlawful origin or to help someone who took part in the offence to evade the consequences of their acts. The penalty is six months to six years' imprisonment and a fine of one to three times the value of the assets; there is also a negligent form (Art. 301.3 CP), carrying six months to two years' imprisonment, of considerable practical importance for institutions and regulated entities.

The connection with sanctions is clear: where funds or economic resources linked to transactions that breach the restrictive-measures regime are moved, disguised or channelled — for example, by routing payments through third parties to circumvent the freezing of a designated person's assets — that conduct may be examined as money laundering. This is compounded by the preventive framework of Law 10/2010 on the prevention of money laundering and the financing of terrorism, which imposes on banks, notaries, lawyers in certain activities and other regulated entities duties of due diligence, beneficial-owner identification and reporting of suspicious transactions. Breaching those duties has its own administrative route and, in the most serious cases, may feed into criminal proceedings.

Directive (EU) 2024/1226

The landscape is set to change with Directive (EU) 2024/1226, on the definition of criminal offences and penalties for the violation of Union restrictive measures. Its aim is to harmonise the criminal offences across all Member States, so that breaching sanctions is a crime on equivalent terms throughout the EU. The conduct it requires to be punished includes:

• Making funds or economic resources available to designated persons or entities, directly or indirectly.
• Circumventing an asset freeze, for example by transferring assets or disguising their ownership.
• Trading in prohibited or restricted goods and services, or providing banned services.
• Breaching the conditions of authorisations granted by the competent authorities.

This directive is still awaiting full transposition into Spanish law. Until that is completed, the criminal response will continue to be built, as we have seen, on smuggling and money laundering. But its existence signals a tightening of the framework and reinforces the need to review internal compliance procedures now.

High-risk conduct and situations

In practice, the situations that most often generate criminal exposure in this area are:

• Exporting or re-exporting dual-use goods or defence material to sanctioned jurisdictions without the required licence or with inaccurate documentation about the destination or end use.
• Dealing with persons or entities designated on the EU, OFAC or UN lists without having carried out adequate screening.
• Structuring payments or arrangements to circumvent an asset freeze or to disguise the beneficial ownership of funds or economic resources.
• Triangulating transactions through third countries or interposed companies to conceal the true destination of the goods.
• Ignoring obvious red flags (abnormal prices, opaque intermediaries, incoherent logistics routes) that point to a prohibited destination.

Companies with international exposure should analyse these risks with advice from lawyers who specialise in the breach of international sanctions and can coordinate the criminal dimension with the regulatory and compliance side.

Due diligence and compliance

Prevention is, in this field, the best defence. A sound sanctions-compliance programme should provide, at the very least, for:

• List screening (EU, OFAC, UN) of clients, suppliers and counterparties, kept up to date and documented.
• Beneficial-owner identification and mapping of the ownership chain, to avoid dealing indirectly with designated persons.
• Dual-use control and verification of the end use and final destination of the goods.
• Analysis of jurisdictions and sectors subject to restrictions, with particular attention to triangular transactions.
• Traceability and retention of the documentation evidencing the checks carried out.

These controls do not merely reduce the risk of an offence being committed: in criminal proceedings, showing that serious procedures existed and were applied in good faith is one of the strongest arguments for challenging intent (knowledge of the unlawfulness) or gross negligence and, with it, the very existence of the offence.

Lines of defence

There is no single defence: each case dictates its own strategy depending on the facts, the conduct charged and the available evidence. Always within respect for the presumption of innocence, the most common lines are:

• Absence of intent: showing that the person did not know — and could not reasonably have known — that the transaction breached a restrictive measure, particularly where screening and verification procedures were in place.
• No offence or administrative classification: arguing that the facts do not reach the threshold of the smuggling or money-laundering offence and belong, where appropriate, to the administrative route.
• Mistake as to the prohibition: in technical, fast-changing regimes with overlapping perimeters, a mistake about the scope of a restriction may be relevant to exclude or mitigate liability.
• Challenging the evidence: reviewing the lawfulness and sufficiency of the documentary and expert evidence and of the information from customs or supervisory authorities.
• Defence of the legal person: establishing the existence and genuine operation of an adequate prevention model and of the due-diligence duties.

Specialist defence with Alonso Sala

Investigations into breaches of restrictive measures almost always combine European and foreign rules, voluminous documentation, technical reports on goods and destinations and the presence of parallel administrative proceedings. At Alonso Sala, a criminal defence firm based in Madrid (calle Velázquez 27) with coverage throughout Spain, we approach this type of matter with technical rigour and discretion, studying each file individually and coordinating, where appropriate, the criminal defence with its regulatory and compliance dimension, in order to build the strategy that best fits the facts and the legal framework in force.