The European Commission released a guidance note on the provision of COVID-19 related humanitarian aid and medical assistance to countries subject to EU sanctions, including Venezuela. The guidance note also covers humanitarian aid to Iran and Syria. In this alert, we only discuss the guidance note insofar as it relates to Venezuela.

The guidance note’s purpose is to clarify the issue of compliance with EU sanctions when providing humanitarian aid, in particular medical assistance to fight the COVID-19 pandemic. As such, it is addressed to competent national authorities of EU Member States, as well as public and private operators involved in the supply of humanitarian aid to the population of the countries subject to EU sanctions (“Humanitarian Operators”) such as donors, international organizations, banks and other financial institutions, as well as NGOs. The guidance note was intended to provide clarity on what constitutes humanitarian relief, banking activities, liaising with designated people / entities, import / export restrictions on items such as ventilators and testing kits, and whether medicine, equipment or assistance are “economic resources”. For further guidance, it expressly refers to the national competent Member State authorities (“NCAs”).

Relating to sanctions pertaining to Venezuela, the European Commission reminds that EU sanctions targeting Venezuela do not concern medicine, medical equipment and medical assistance provided to the population at large. As such, medical equipment, including oxygen, respirators, personal protective equipment (PPE) and ventilators, as well as medicines and other medical items required to fight the COVID-19 pandemic, are not subject to direct restrictions on export, supply, financing or use in Venezuela. The note, however, explains that in specific and very limited cases, the export, supply or financing of items needed by Humanitarian Operators may be indirectly impacted by the freezing of funds or economic resources of certain persons, entities and bodies subject to EU sanctions (“designated persons”) who or which may happen to be involved in the relevant transactions.

The guidance note sets out the general rule that EU sanctions targeting Venezuela do not allow making available funds and economic resources to these designated persons. Under normal circumstances, provision of humanitarian aid should not be prevented by EU sanctions. The guidance note indicates that due to the targeted nature of applicable sanctions and the limited number of Venezuelan designations, the practical impact of sanctions on the provision of humanitarian assistance to the Venezuelan population should be limited.

The guidance note is structured as a Q&A document setting out 14 questions over four distinct categories (prohibitions on making funds and economic resources available, import and export restrictions, other questions and other legislation). Below, we summarize the main takeaways for each specific question.

1. Insofar as no funds or economic resources are made available to a designated person, it is not prohibited to liaise with a designated person to organize the provision of humanitarian aid in a safe and efficient manner;
2. Humanitarian Operators should have in place the required procedures to carry out the necessary checks to ensure that partners involved in the delivery of humanitarian aid are not designated under EU sanctions. Humanitarian Operators should also ensure that funds and economic resources, including medical equipment, are not diverted by designated persons;
3. Medicine, medical equipment, disinfectants and protective equipment constitute “economic resources”. However, providing isolated items of these goods to a designated person for their own use or protection would not amount to making economic resources available to them, and the Venezuela Regulation contains derogations enabling competent national authorities to authorize making available funds and economic resources to satisfy medical basic needs of designated persons and family members;
4. The provision of medical assistance does not amount to “making economic resources available” to designated persons since the provision of medical assistance to persons infected by, or suspected of having contracted, COVID-19, is not itself considered to have an intrinsic economic value, or be exchangeable for funds or economic resources;
5. Humanitarian Operators are allowed to provide funds to local Venezuelan organizations for the purposes of fighting the COVID-19 pandemic, as long as these are not designated. If designated persons are involved, the response to question 1 should additionally be taken into account;
6. The sanctions in place generally do not prohibit dealing in goods and technologies for humanitarian purposes to fight the COVID-19 pandemic. Prohibitions on exports of protective clothing that could be used for oppression, e.g. flak jackets or military helmets, do not apply if they are intended for personal use by Humanitarian Operators. In case of doubt as to the use of a certain equipment, humanitarian operators should seek the necessary clarification from the manufacturer;
7. EU banks can open a new bank account with a Venezuelan credit or financial institution to support humanitarian aid fighting the COVID-19 pandemic. Banking activities with Venezuelan banks are allowed, provided that the Venezuelan financial institution is not a designated entity;
8. EU nationals may travel to Venezuela to provide medical assistance in the country;
9. 9. Humanitarian Operators are allowed to purchase fuel in Venezuela, rent vehicles or use private transport services in Venezuela, including for the purposes of transporting medical equipment into or within Venezuela;
10. Humanitarian Operators are allowed to help people affected by the COVID-19 pandemic to relocate to other locations in Venezuela or outside the country;
11. Humanitarian Operators may finance or take part in the construction of makeshift hospitals, sanitation operations or temporary infrastructures to fight the COVID-19 pandemic;
12. If the only way to provide assistance necessarily involves designated persons, the provision of humanitarian aid is allowed; however, Humanitarian Operators must always seek solutions that do not breach EU sanctions. Accordingly, Humanitarian Operators are required to try to channel humanitarian aid via actions and persons that are not restricted under the Venezuela Regulation. Only where no other options are available, in accordance with International Humanitarian Law, the provision of humanitarian aid should not be prevented by EU sanctions;
13. Humanitarian Operators are not required to vet the final beneficiaries of humanitarian aid. According to International Humanitarian Law, the Treaty on the Functioning of the European Union and the principles of humanity, impartiality, independence and neutrality, humanitarian aid must be provided without discrimination;
14. Humanitarian Operators subject to EU jurisdiction do not have to comply with sanctions regimes from third countries, such as US sanctions.

We will continue to monitor the relevant developments and keep you informed. If you have any further questions, do not hesitate to contact your Dentons team!